Cultural property

DEFINITION OF CULTURAL PROPERTY ACCORDING TO INTERNATIONAL LAW

The concept of “cultural property” (biens culturels, beni culturali) was initially introduced in International Law and eventually adopted by State national legislation, thus posing the question of its definition.

The expression “cultural property” first appeared in the text of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (see Art. 1), then was repeated in the following Conventions, from the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (art.1) to the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (art.2).

Immovable cultural property can form part of the World Cultural Heritage when it meets the 1972 Convention on the World Heritage requirements.

A definition for movable property is provided for in Art. 2 of the 1995 UNIDROIT Conv.: << cultural objects are 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 this Convention >>.

The Annex contains a list by categories of goods to which the treaty rules apply. This list follows the one set forth by Art. 1 of the 1970 UNESCO Convention.

It is not a closed list and doesn’t refer to the monetary value of the goods, moreover it doesn’t correspond exactly to the list of categories of cultural goods described in the Italian Code of cultural property (see Art. 10 and Annex to the Code).

Recently the concept has evolved, thanks to two new instruments redacted by UNESCO: the 2003 Convention on the Safeguarding of Intangible Cultural Heritage and the 2005 Convention on the Protection and Promotion on the Diversity of Cultural Expressions, which enlarged the notion of protected “cultural property” far beyond the traditional concept, due to the fact that their scope is to safeguard the living and mainly intangible cultural expressions which weren’t taken into account by the previous conventions.

Then there is the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage which qualifies as cultural property: “all traces of human existence having a cultural, historical or archaeological character which have been partially or totally under water, periodically or continuously, for at least 100 years”, described in the non exhaustive list of art. 1 .

To tell the truth, the definition of cultural property outlined in the above mentioned international conventions is somewhat tautological.

The idea that an item must be of a “cultural” importance in order to be encompassed by the international treaty law is present in almost all the conventions dealing with this issue, and sometimes qualified by other specifications, such as great, significant or particular importance.

Due to the broadness of the definition, the objective scope of treaty law protection can encompass not only universally recognized masterpieces but also all those items that represent “la testimonianza materiale avente valore di civiltà” (material testimony of epochs and civilizations), as stated in 1966 by the former Italian legislator in the famous Franceschini Commission’s declaration XXXIX.