Objects of cultural heritage include historical, ethnological and archaeological objects. They also include archival material and artworks. Some objects are also underwater, including monuments and artifacts. Various types of objects may have monetary value. Other objects carry a spiritual significance. These objects should be protected and preserved, especially in times of war.
The 1970 UNESCO Convention sets forth the notion of a “national cultural heritage” – an expression of national identity. This concept gives states exclusive rights to certain types of art and other cultural property found within their own territory. Article 13(d) of the Convention gives states the power to designate such cultural property as a national cultural heritage. Other member states are also required to help recover such cultural property. In addition, the law requires that the owners of outstanding artefacts consider the wider public interest.
In the past, many religious institutions have commissioned artistic works as part of their religious missions. For example, stained glass windows in Gothic cathedrals have become iconic religious legacies. Some of these works made their way into museums and were displayed for tens of millions of tourists and students. However, these works are now targets for collectors and middlemen. Some artefacts have been lost due to the destruction of war, colonial practices or looting. Despite the fact that these works have been exhibited in major museums throughout the world, they are still threatened with loss.
The 1970 UNESCO Convention also establishes that the destruction of cultural property is a violation of human rights. These violations include organized looting, illicit trafficking and persecution of individuals and communities. Whether a state is responsible for the destruction of a particular cultural object depends on its nature and the circumstances of the occurrence. For example, the sale of artefacts by Jewish collectors in the early 1930s could not be considered illegal at the time. Nonetheless, under the Washington Principles, such a sale could qualify for reparations.
The US Native American Graves Protection and Repatriation Act, which was passed in 1990, recognizes that cultural objects are inalienable. It also recognizes that states are not in a position to alienate artefacts that are outstanding. This is because ownership is more than a simple right to use and exploit an object. It is a bundle of rights, which includes the right to exclude others from using or destroying the object and the right to destroy the object.
The Washington Principles prescribe a number of just and fair solutions, such as loans and temporary exhibitions. These solutions can be implemented by states, but there are also cooperative solutions that can be implemented. Examples of these solutions are joint activities of research, restoration and temporary exchanges of cultural objects.
Although the 1970 UNESCO Convention establishes that states are the exclusive holders of national cultural heritage, the concept of a heritage title is also important. It defines rights in terms of access and control, and entitles the people who own such cultural property to an equitable solution.