LEGAL FRAMEWORK

MUSEUMS, CULTURAL HERITAGE AND INTERNATIONAL LEGISLATION
Alessandra Lanciotti, Università di Perugia

The need to protect museums and works of artistic and historical interest a special regulation emerged first in the national legal orders and then gradually involved also the International Community.

It was only after World War 2, and the rise in number of destructions, thefts, spoliations and illicit exportations of artworks that some international institutions and organizations dedicated to the protection of moveable and immoveable cultural property.

As a matter of principle, according to International Law, each State has the right of sovereignty over the cultural and museal material located in its territory. Nonetheless States committed to the protection of their historical-artistic heritage conclude treaties undertaking the obligation to cooperate and assist reciprocally in the safeguarding of their own cultural heritages.

The obligations to protect cultural property affirmed in the international conventions are different for immovable property (such as museums, historical palaces, monumental and archaeological centres) and for movable property (such as archaeological findings, property of an artistic-historical interest and other artworks), which – by their nature – can be displaced and transferred illicitly from one State territory to another.

As for immovable property, International Law’s main concern is to achieve cooperation among States in order to preserve and respect immovable property in the place where it stands (the so called “in situ protection”) and in particular to protect the immovables belonging to the World heritage.

As for moveable property, the main concern is to prevent thefts, spoliations and illegal exportation which cause the impoverishment of the State of origin’s cultural heritage, accomplished by treaties which regulate the international circulation and commerce on such property. Recently the UNESCO 2001 Convention on the protection of Underwater Cultural Heritage entered into force, which prohibits trade of archaeological objects found at sea.

Also the European Community showed interest in the protection of the Member States’ historical-artistic treasures from the standpoint of controlling illicit traffic in cultural goods and enacted laws that derogate to the EU principle of free circulation of goods.The legislative intervention  of the EC was two-pronged: on the one side, toward a global ruling on the export of cultural goods outside the EC territory, which brought to the enacting of an ad hoc Regulation (ECC Council Regulation No 3911/92, now Reg. No. 116/2009); and, on the other side, toward a ruling on the circulation of cultural property inside the EU territory, through the approval of a specific Directive on the return of cultural objects unlawfully removed from the territory of a Member State, whose aim is mutual recognition of the relevant protectionist national laws ((Council Directive 93/7/EEC).

The EC legislation as well as the obligations provided for in the International conventions have been transposed into Italian law and is now contained in the 2004 Code of cultural property and landscape (Codice dei beni culturali e del paesaggio, Legislative Decree No. 42 of  22 Jan. 2004, see Art. 73 ff.).

The new Code has also implemented international conventions to which Italy is a contracting party.