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This article is part of a collective research that focuses on studying various national legal tools elaborated for implementing the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage (ICH), adopted in 2003. Instead of presenting the first results of this comparative law research project still in progress, the purpose of this article is to question the object of such a comparative study – before comparing and even before defining the scope of the study in terms of countries to be studied. It is certain that a comparative study on ICH law cannot be carried out simply based on a database gathering national laws using the term “ICH”. The pitfall is twofold: on one hand, it would be an error to think that one starts from nothing, and that ICH law remains still to be written in the vast majority of States; while on the other hand it would also be an error to create artificial continuities, with more or less assumed political implications, made up of legal regulations of yesterday and today which, nevertheless, do not claim to concern ICH. It is in the interval between these two extremes that legal continuities, as well as disruptions of the legislative histories may be observed, and all of these would enrich our understanding about the contexts in which the term “ICH” has been incorporated into national legal systems.
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International Law, is president of the Constitutional Council in Algeria. He presided over the meeting of government experts in charge of developing the Convention which is examined here. Approximately 200 billion human beings have successively followed one another on our planet since the origin of the species. Approximately 20,000 peoples and ethnic groups have left their mark on our habits and customs, our folklores and choreographies, our music and fine arts, our rituals and our savoir-faire.
The International Law on the Protection of Cultural Heritage
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We present a comprehensive analysis of the concept of cultural heritage and the institutionalisation of its protection by the international law in various historical contexts of involved states, i.e., during peace, conflict, social and/or political crisis. Furthermore, we discuss the human dimension of the protection of cultural heritage at an international level under the public international law. In particular, we first investigate whether states remain central actors at national and international level as far as the protection of cultural property within their territory is concerned. Subsequently, we examine the limitations imposed on the action range of a state due to primary and secondary legislation of international organizations where the state participates. Apart from this form of external pressure on the state jurisdiction, we also examine whether the action range of a state is further limited by the action of individuals and groups. Furthermore, we discuss on the potential role of international human rights law in such situations, the interdependence between the protection of individuals and cultural goods as well as whether the individual is transformed into an active actor of international law.
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The article discusses the achievements of international legal regimes for the protection and safeguarding of cultural heritage, focusing on the regimes created under the auspices of UNESCO. It argues that, even though there are many achievements of these regimes, and that these should be celebrated, each major achievement (bright side) casts a shadow (a dark side), which comes to show the unintended consequences of international heritage law. The dark sides often stem from an over-reliance on the law as a vocabulary for articulating heritage matters, while overlooking the limitations of the law as a discipline and a tool in the constantly-changing realm of heritage. The article calls for a more self-aware international heritage law, one that is willing to consider both the lights and the shadows of these regimes.