ABSTRACT
Sources of law for the safeguarding of culture and cultural heritage can be found in national legislation, enactments of regional organizations, and in the wider body of public international law. As far as national law is concerned, almost every state today provides some form of regulation of culture and cultural heritage protection. The UNESCO Database of National Cultural Heritage Laws documents the laws of 188 states, which include constitutional provisions, statutory law, and administrative regulations on the subject. The common denominator of these national laws is that, in principle, cultural regulation falls within the sovereignty of the state. This results in a great variety of regulatory models. Some states tend to have comprehensive cultural heritage codes, others regulate only discrete areas of culture; some common law countries prefer a concrete and detailed regulation as opposed to the tendency of civil law countries to rely on general principles of law; some states take a nationalistic and retentionist approach while others favor a cosmopolitan model promoting free trade and cultural exchange. In other words, every national legal system has its own approach to cultural heritage. The only unifying element is the commonality of commitments undertaken by each state under international treaties and as a member of the international community. As for regional law, culture can be a powerful element in forging regional identities. This is made especially evident in the US context with the pioneering role of the 1935 Roerich Pact and the 1948 American Declaration, and, more recently in the European context, with the important role played by culture in the normative action of the Council of Europe and of the European Union. However, it is at the level of public international law that the sources of cultural heritage law acquire special relevance. Because of the diversity and plurality of national legal systems governing cultural heritage, international law becomes the ultimate safeguard against the exploitation of the gaps left by the diversity of national regulation for the purpose of legitimizing illicit practices such as traffic in stolen objects, trade in illegally exported cultural property, or the destruction of cultural property on the basis of self-serving justifications of “military necessity”. International law is also a necessary tool to pursue the protection of cultural heritage of importance to humanity, especially at a time when terrorism and fundamentalism target and loot cultural heritage of outstanding universal importance. The following chapter focuses especially on the sources of international cultural heritage law. It will examine first the relevant treaties on the subject, starting with the UNESCO Constitution and the multilateral conventions overseen by UNESCO and UNIDROIT. It will examine the sources of “secondary” law consisting of the binding resolutions of international bodies. Then it will discuss the relevance of “soft law”, including international declarations and recommendations. Finally, it will address the question of whether, besides the above sources, customary norms and general principles exist to create obligations for states to respect and protect cultural heritage even without their consent or against their will.
