Legal aspects of the protection of cultural heritage

[摘要] English: Cultural heritage, whether tangible or intangible, has local, national and international dimensions. The study is concerned not only with the preservation of the physical existence and survival of cultural objects, but also the continuation of the social roles they fulfill. Culture plays a variety of roles today, the scope of which impacts on the definition attached to cultural heritage. Finding a workable definition for culture necessitated a consideration of sociological, anthropological and other meanings of culture. A workable definition for cultural heritage implies that culture must be distinguished from non-culture. Cultural self-determination is of growing importance in the modern world and it is our responsibility to continually reassess and improve our own methods of defining and interpreting our heritage, both tangible and intangible. International law standards and trends regarding protection of cultural objects differ according to whether protection is required in times of war or peace. International criminal jurisdiction exists with respect to war crimes involving cultural heritage and crimes against humanity in the former Yugoslavia, amongst others. Considering the nature of international and internal conflict, it is important for states to be aware of the latest developments in international law. Earlier conventions were developed on the basis of a national idea, for example those that regulate import and export of cultural objects. Progress is evident from the latest international initiatives based on object-related values, which place more emphasis on claims for restitution of cultural objects. Since the international protection of cultural rights found in various international and regional instruments can inform claims before a domestic court, selected international materials were considered, including those containing minority rights. Definitions from selected national laws, on the other hand, give an idea of what states regard as worthy of protection. International and regional initiatives that create mechanisms to facilitate return do not conclusively address the complex issue of who owns cultural property. This necessitated an investigation of different conceptions of and discourses on property and intellectual property. The restitution of property stolen, lost or misappropriated across state boundaries is a complex issue and is explained with reference to examples. Strategies for retention and recovery include rules belonging to the area of the conflict of laws and import and export laws. The trans-nationalconsequences of recovery are investigated, utilising case studies of selected countries.Progress made by South Africa towards the model of the 'cultural state' and protection of thecultural heritage is discussed. In South Africa, the new order is based on a Constitution thatshows a commitment to protect multiculturalism. Income levels of the population and the degreeof social cohesion are factors that may hamper effective cultural heritage management on theAfrican continent and in South Africa. Given that there is no shared language, tradition orancestry, constitutional devices have been included to deal with the divergent forces of culture,language and religion in the South African state. These devices are discussed and evaluated.Internally, measures have been adopted to facilitate the management of cultural resources and tostem the flow of cultural heritage or heritage objects to the outside world. Developmentspertaining to the legal protection of intangible heritage, such as a legislative framework forlanguage and indigenous intellectual property rights legislation, have been particularly tardy.South Africa faces a number of options under current public international law. To fullyunderstand these options, they are considered separately and where appropriate, against thebackdrop of South African conflict of laws. The suitability of different international agreementsfor South African conditions is indicated.Cultural heritage lies central to how individuals, communities or nations identify themselves.Within this context, the study contributes to an understanding of what cultural heritage means toSouth Africa, and provides a point of reference for future strategies to improve the identification,protection and nurturing of our cultural heritage.

[发布机构] University of the Free State