ABSTRACT
The relationship between heritage and law has been one of mutual influence for centuries, if not longer. Although this chapter addresses as its primary subject how heritage has been treated as a subject of law, it will also take account of ways in which various heritage disciplines have studied and interacted with the law. Cultural heritage law is relatively young as an international legal discipline and the main global treaties were concluded post-World War II. However, the relevant customary law has a much older pedigree and can, in fact, be found in ancient documents such as the declaration on the seal of Cyrus, and heritage protection on the national scale has also existed since ancient times. There is no doubt that official conceptions of heritage have dominated much state building, a pre-condition for most legal systems, providing the often-spurious national identities upon which states are predicated and so law and heritage have always enjoyed a powerful interaction. Understanding this duality of law and heritage is therefore essential to understanding how implementing legal regulations impacts heritage and its various actors and stakeholders, many of whom may not ascribe to the official version of what ‘heritage’ is. Also of interest here is to understand how the development of the legal protection of cultural heritage has been influenced by and reflects contemporary understandings of heritage and, similarly, how the law has itself influenced how we value and understand heritage. Even unpacking such fundamental notions as “culture” and “heritage” in the legal context is complex and revealing and demonstrates both the commonalities and the fault lines that exist between legal and non-legal conceptions. In the legal field, human rights law is the discipline in which these have found their closest conjunction. Examining the commonalities between heritage (as a non-legal conception) and human rights (as a primarily legal conception) will therefore form part of the discussion in this chapter. Another point of departure is the relationship between law and the discipline of anthropology that dominates so much of the non-legal thinking in the heritage studies field, in particular their surprising common roots and objectives, despite very different methodological approaches, converging as they do in modern anthropological studies of the law and legal regulation of primarily ‘anthropological’ concepts such as intangible cultural heritage. Beginning by setting out a brief historical review of the relationship between legal regulation and heritage, this chapter will then address a number of key terms in heritage protection law, their implications, and how the use and interpretation of these concepts has evolved over time. Following this, the strong inter-relationship between human rights (law) and heritage will be examined, including regional human rights regimes. The mutual interaction between law and anthropology will also be examined in order to unpack further the relationship between law and heritage, with examples taken from national and international (regional) jurisprudence, of anthropological research on legal processes and of the international listing mechanisms of UNESCO’s 1972 World Heritage Convention and the 2003 Intangible Heritage Convention to illustrate these points.
