The term cultural heritage is used to refer to a variety of physical and intangible heritage assets, including artifacts, archeological sites and architecture. During war, it can be crucial to protect these objects. They are symbols of a people’s identity and deserve to be protected. However, in times of conflict, these objects are subject to systematic attacks. In recent years, such attacks have become more frequent and widespread.
Cultural objects are a source of economic benefit and are frequently traded. Moreover, these objects are a source of cultural diversity and social cohesion. Protection of this diversity is essential for national dialogue and in resolving crises.
The 1970 UNESCO Convention on the Protection of Cultural Property is one of the major international agreements governing the movement of cultural objects. Article 13 of the UNESCO Convention provides for the establishment of a system of national cultural heritage. Despite the convention’s success in establishing a legal framework for the art trade, the Convention has not yet been ratified by market states. This leaves many blind spots in the dispute resolution process for artifacts that left their original setting.
In addition, the convention also appoints states as exclusive owners of national cultural heritage. Nevertheless, the convention does not address private losses. Similarly, the UN Human Rights Committee (UNHRC) has recognized cultural heritage as an important component of promotion of cultural rights. Therefore, the UNHRC has adopted Resolutions 33/20 on illicit trafficking in cultural objects and 37/17 on protection of cultural heritage.
Among the most significant problems with the UNESCO Convention is that it does not address private losses. Private losses, such as those resulting from looting, are not accounted for in the convention. Furthermore, the convention fails to take account of the changing value of these objects. These issues are addressed in the Operational Guidelines for the 1970 UNESCO Convention.
Another issue with the Convention is that it was never intended to resolve competing claims. Despite the efforts of UNESCO to arrange the field of cultural objects in the traditional interstate way, the 1970 Convention was not a response to these claims. Instead, it was an attempt to control the movement of these objects.
The conventional legal framework for the art trade is based on the UNESCO Convention. Although the Convention has created a legal framework for the protection of cultural property, its underlying philosophy of exclusivity for states is unsuitable for solving title issues with contested cultural objects. A much better solution to the problems of title is to adopt an ownership concept that is suited to a variety of cultural assets.
One such concept is the “heritage title”. While it is not an absolute right, it can provide individuals with access and control rights to their own heritage. This means that a state may not unilaterally destroy or confiscate an outstanding artefact, while the person who possesses the object may not alienate it. Rather, the title of an artefact depends on its continued existence, its social, political and cultural link and its value.