- As good as it gets?
On September 27, 2016, the International Criminal Court (ICC), for the first time, punished the intentional destruction of cultural heritage as a war crime. On March 24, 2017, the United Nations Security Council approved its Resolution no. 2347, on the destruction and smuggling of cultural property in case of armed conflict. From March 30 to March 31, 2017, in Florence, the first ever G7 meeting of Ministers of Culture, together with representatives of the EU and of UNESCO, took place under Italy’s Presidency of the G7, and resulted in the issue of a joint declaration on “Culture as an instrument for dialogue among Peoples.”
These three episodes are evidence that states and international institutions are progressively becoming more aware of the importance of cultural heritage and the urgent need to take global common actions to ensure its protection. As a matter of fact, the shocking images from Palmyra, to name but one example, and worrying data from several investigations show that terrorism identifies cultural property not only as a primary target but also as potential revenue.
Can we therefore affirm that a new era of (international) cultural heritage law has begun? If so, what kinds of effects can this new era have on international law and public law generally? And, finally, what is the role that countries with a long tradition of protecting cultural heritage can play within this context?
The ICC Al-Mahdi decision on the destruction of cultural sites in Mali has filled a gap which in the past only a few forward-looking special Tribunals—such as the one for the former Yugoslavia—were able to even deal with; the Court explicitly recognized as a war criminal, under article 8, paragraph 2, letter e) (iv) of the Rome Statute, one who had intentionally directed “attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives.” It is a cornerstone decision, although only related to war crimes. What happens if a cultural site is destroyed in times of peace? Or if one government in charge explicitly orders such destruction, as happened in Afghanistan in 2001 when the Taliban bombed the Bamiyan Buddhas? The Al-Mahdi decision is important to protect cultural heritage internationally in case of armed conflict, but there are still other significant gaps in the criminal law regime applicable to ordinary situations. Moreover, historic property might also be seen as at risk within the domestic context, as the debate on confederate monuments in the USA demonstrates.
UN Resolution No. 2347/2017, born from the joint action of the French and Italian governments, mainly refers to armed conflicts and terrorist attacks and to the increasing need to protect cultural heritage in those circumstances. However, the resolution also aims to ameliorate policies of cultural heritage protection around the world, as it lists actions that states should take, such as cataloguing, controlling circulation, and the establishment of “specialized units in central and local administration” (e.g. the world-renown Italian special department of the Carabinieri Corps).
The Florence Declaration of the G7 Ministers of Culture, who met for the first time in the history of the G7 organization, is even more pioneering. This document not only re-affirms that preventing terrorist attacks and the illicit trafficking of cultural property is a global priority, but it also identifies cultural heritage “in all its forms, tangible and intangible, movable and immovable” as “being an extraordinary link between [the] past, present and future of mankind.” Cultural heritage, according to the Florence Declaration, “a) contributes to the preservation of identity and memory of mankind and encourages dialogue and cultural exchanges among nations, thereby fostering tolerance, mutual understanding, recognition and respect for diversity; b) is an important tool for the growth and sustainable development of our societies, also in terms of economic prosperity; and c) is both a driver and a subject of the most advanced technologies and a context for measuring the potentials and opportunities generated by the digital era.”
In addition to these three “success” stories, other recent episodes, such as the 2015 UNESCO Recommendation on the Protection and Promotion of Museums and Collections, the Unite4Heritage initiative—launched in 2016 by Italy with the aim of establishing “blue helmets” for cultural heritage—or the 2017 Council of Europe (CoE) Convention on Offences relating to Cultural Property signed in Nicosia indicate that we are currently witnessing significant changes in the field.
- Old dilemmas, new challenges
International policies relating to cultural heritage are, therefore, rapidly moving toward two goals. The first goal is to ensure that existing tools will be more effective, as exemplified by the ICC Al-Mahdi decision and the Security Council’s UN Resolution No. 2347/2017. The second goal is to set standards for more systematic action in the cultural heritage sector: interventions should not be limited to random episodes or to heal single “pathologies”, but should also focus on prevention and development, as the Florence Declaration seems to confirm.
What are the legal challenges and opportunities that these changes trigger? Are these transformations truly affecting the features of the law of (international) cultural heritage? And, if so, how may such features evolve in the near future?
2.1. “The infinity of lists”
The oldest legal dilemma in the cultural heritage field is the complexity of the very notion of cultural heritage and cultural property and the wide range of their definitions. The system built on the 1954 Hague Convention—when the term “cultural property” itself was first used in an official document—refers to a wide range of cultural property, irrespective of its ownership. The objects affected by the international regulation of trade and restitutions may vary according to each state. Other definitions are formulated at both the supranational level (as in the case of the EU or the CoE) and the domestic level, also depending on specificities (e.g in the case of underwater cultural heritage, which is regulated by the 2001 UNESCO Convention).
The 1972 UNESCO World Heritage Convention, for instance, draws a system based on the idea of a list: there is the objective to identify a specific heritage, which has universal value; but there is also the idea of creating an “infinite” list of sites, each of them outstanding and, therefore, unique. This brings to the fore the dialogue between the global and the domestic level: each UNESCO site represents what a given state recognizes as one of the most valuable “pieces” of its national heritage; at the same time, once added to the list, these same “national” sites become part of a universal heritage. A more recent example of this dialogue between the international and the national level—which dates back to the eighteenth and nineteenth centuries—comes from the 2017 Nicosia CoE Convention on Offences relating to Cultural Property, where states forged an ambitious definition which embraces both movable and immovable property and tries to balance domestic sovereignty with “international multiculturalism.”
International norms, therefore, enrich the set of definitions of what cultural property is. However, the legal notion of cultural property remains a “liminal notion,” i.e. a notion that legal norms cannot define without referring to other disciplines or sciences. This “liminal notion” makes the legal concept of cultural property “mobile” and allows each international document to give its own definition. These definitions necessarily refer to the concept of (a given) culture and this partially explains the fact that the predominant idea of cultural property—which emerged immediately after the World War II and stemmed from terms like “historic objects” or “work of arts”—still seems “unbalanced,” i.e. dominated by the Euro-American perspective, while ideas coming from other cultures have not received enough attention. The increasing relevance of intangible heritage and cultural diversity helps reduce Western bias in the debate. And “borderlands,” such as design and fashion, can also contribute to a better framing of legal problems underlying the very notion of cultural heritage. From this perspective, the adoption of wide and inclusive definitions, like the one in the 2005 Faro CoE Framework Convention on the Value of Cultural Heritage for Society, represents an important step forward.
2.2. One world heritage with several national properties and multiple international regulatory regimes
Another significant challenge (and opportunity) is the fragmentation of (international) cultural heritage law, which deals with numerous international regimes and several national “treasures” presumed to be part of a world heritage. This feature somehow resembles the variety of property that falls under the “cultural heritage” label. As a matter of fact, since World War II, international regulation of cultural heritage and its evolutions have moved along three main different patterns of “globalization.”
The first pattern consists of the creation of a world system of protection (mainly based on the 1954 Hague Convention and the 1972 UNESCO World Heritage Convention) with rules and procedures set by international conventions and organizations and implemented by national administrations. In this pattern, the system has moved from a more traditional legal framework, based on conventions to a more flexible one, composed of guidelines, policies, and other “soft” mechanisms. The number of actors involved has been increasing and includes not only governments but also international non-governmental organizations and other entities.
The second pattern may be identified in the adoption of international norms regarding the circulation and restitution of cultural objects (such as the 1970 UNESCO Convention and the 1995 UNIDROIT Convention). Effective international regulation of the trade and restitution of cultural property requires a multi-layered set of norms, ranging from international treaties to operational policies and agreements, with the intervention of several actors: states, museums, and other institutions. In a certain way, the examples of international regulation of trade and restitution of cultural property provide evidence of the limits of traditional international mechanisms in addressing “global” interests; these examples also confirm the need to develop global standards for private actors, as well as museums.
This leads us to the third pattern, i.e. the development of international standards for museums and cultural institutions. In this case transnational mechanisms, such as the documents approved within the International Council of Museums (ICOM), have become global, due to their large use and high degree of compliance. Indeed, ICOM is an international non-governmental organization that adopts global standards with which members must comply, but the scope of these standards—e.g. the Code of Ethics—goes beyond ICOM membership because many countries, such as Italy, have enacted statutes or regulations which refer expressly to them.
These three patterns simultaneously coexist and develop, and this produces several interactions among them. It is too early to have one single comprehensive regulatory regime, but these linkages favor the efforts toward more systematic policy actions, such as the 2017 Florence Declaration, which considers the overall role cultural heritage plays in the world, or the 2017 Nicosia CoE Convention, which gives a broad definition of cultural property as part of the search for a balance between national prerogatives and international demands.
2.3. The three dimensions of (international) cultural heritage law
The (international) regulation of cultural heritage, like other sectors, displays three dimensions: regulatory, institutional, and procedural. On the one hand, each of these dimensions allows for the recognition of trends and phenomena which also characterize other international regulatory regimes; on the other hand, each dimension highlights further issues relating to how cultural heritage law itself may evolve in the near future.
The regulatory dimension results in an increasing lawmaking activity carried out at the international or supranational level. This activity regards both public and private actors. UNESCO produces guidelines, policies, and other norms that implement traditional treaties and conventions. The EU and other regional organizations enact specific regulations. International non-governmental institutions (e.g. ICOM) adopt documents that affect not only the actors directly involved in the lawmaking process but also states or other institutions that are not yet members of these organizations.
Within this context, the Security Council’s UN Resolution No. 2347/2017 represents a significant step toward more comprehensive approaches. In contrast, the role played by international courts in this field still appears to be extremely weak. Besides the Al-Mahdi decision by the ICC, there are too many aspects of cultural heritage law which do not fall under the jurisdiction of any international court; some norms are not even enforceable before national courts. This is why the new 2017 Nicosia CoE Convention tries to introduce more effective monitoring and enforcement mechanisms.
As for the second dimension, international regulation makes the institutional framework for the protection of cultural heritage much more complex. The actors involved are not only governments or international governmental organizations but also national administrations or other entities and private actors, whether international or national. A plethora of institutions act in concert in order to balance the numerous interests connected with cultural property. This of course blurs the dividing line between public and private, producing hybrid regimes. Such situations are familiar to other sectors, especially those in which there are many interests at stake, as in public health or the environment, where forms of global public–private partnerships have been extensively developed.
Furthermore, both UN Resolution No. 2347/2017 and the G7 Florence Declaration urge states to have ad hoc offices and units for the protection of cultural heritage, also in terms of operational and investigative actions. In order to strengthen the control of circulation of artworks, states need offices with high scientific expertise. Rules and principles set by UNESCO and by ICOM influence how states regulate their own museums: this can lead some countries to incorporate transnational standards into their own legislations, as Italy did with its reform of state museums from 2014 to 2017.
As for its third dimension, the (international) regulation of cultural heritage presents a multi-layered system of procedures, like other international regulatory regimes (e.g. world trade, the environmental sector, and public health, to name but a few). There is a vertical dimension, with UNESCO, ICOM, and other international institutions on the one side, and states, domestic administrations, and museums on the other. There is also a horizontal dimension, consisting of the relationships between states and the relationships between members inside ICOM or other organizations. Moreover, the recent initiatives mentioned above display the growing forms of cooperation between different countries and favor the adoption of dedicated procedural solutions: UN Resolution No. 2347/2017, for instance, urges states to take adequate measures to control the circulation of cultural property, such as the use of import or export certificates.
- Toward a cultural heritage law for mankind?
The international regulation of cultural heritage, therefore, sheds light on the multifarious relationships between the different levels of interests and actors in the field: global, national, local, public, but also non-governmental. Indeed, cultural heritage simultaneously refers to many interests, either public or private or both, which often oppose each other: safeguarding cultural property; controlling the circulation and the trade of these objects as well as keeping them within their national borders or having them returned; keeping cultural property in its original context; granting public access to cultural heritage and spreading knowledge about it; and using cultural property, as in the case of buildings or sites meant for other purposes, including religious ones.
All of these interests—which need specific regulation and often ask for dedicated “definitions” of cultural heritage—may be divergent: increasing access might make protection more difficult; restricting circulation might reduce access; bringing an object out of its original context may contribute to its conservation but trigger claims for its return. One paradox we see at the international level is that the more relevant cultural property is to mankind the more significant it will be at the national level, and this may increase conflicts between states. This plurality of interests and the variety of relationships between public and private turn the field of cultural heritage into a “social construct,” an “art system” in which “art players” and “art supporters” operate both nationally and internationally.
The international regulation of cultural heritage has recently produced significant outcomes, such as the UN Resolution No. 2347/2017 and a dedicated G7 meeting. However, this field still seems to operate in isolation, in spite of its existing connections with other international regimes (such as those affecting trade or the environment). It would be worth strengthening these interconnections. The UNESCO World Heritage Convention, for instance, represents an excellent opportunity to enhance closer cooperation between the protection of the environment and the protection of cultural and natural heritage. The scenarios left unaddressed by the Al-Mahdi decision highlight the important linkages between cultural heritage and the protection of human rights. At the same time, the CoE and the UN Office on Drugs and Crime (UNODC) ensure connections between this field and international criminal law and procedures. Moreover, the relationship between cultural heritage and digital technology should be more intensely investigated.
It is also crucial to continue to identify and share best practices developed in domestic legal orders. Almost every state has recognized the specificity of cultural objects and their multifarious interests. Due to this recognition, specialized public bodies have been established in order to deal with such interests. Here states with a long tradition in the field can significantly contribute to the development of common practices—as the French and Italian initiatives within the UN demonstrate—and they can be seen as “source nations” which provide other countries also with tried and “reliable” legal instruments or proceedings. From this perspective, the set of UNESCO norms represents a toolbox of mechanisms inherited from European legal traditions and adapted and transformed according to different states’ needs which aim to protect cultural heritage (through such instruments as declarations, plans, permissions, etc.).
Italy is a prime example of this phenomenon of “regulatory influence”: it has been dealing with the protection of cultural heritage for centuries, thus developing the concepts of safeguarding, protection, conservation, restoration, and ultimately “valorization” of such heritage as a continuous process of knowledge and research. The establishment of the International Centre for the Study of the Preservation and Restoration of Cultural Property (ICCROM) in Rome in 1959 is a testament to this. Therefore, since the early 1900s—in a sort of continuity with the long series of edicts, orders, and decrees adopted since the fifteenth century by the Pope and other “states” in a pre-unified Italy—Italian laws have built sophisticated mechanisms for protecting cultural heritage. These various legal and administrative acts have long served as a model for other countries (such as Spain and Greece, to name but a few).
Such a phenomenon of regulatory influence is not a one-way path, however, because international developments can also positively influence both domestic legal orders and national administrations of cultural heritage. Therefore, Italy has been not only a “source nation” but also a “market nation”—here meaning a country that imports legal instruments or institutional models from others or that is “nudged” by the international context to do something—in more than one sense: the need to re-align Italian institutions with those of other countries and to comply with ICOM museums standards, for instance, pushed the Italian government to adopt the above mentioned 2014 reform of state museums.
Cultural heritage involves almost every field of law, as it affects constitutional, public, private, commercial, tax, comparative, and international issues, to name but a few. And the “liminal notions” of culture and cultural heritage demand multidisciplinary approaches, which may require study and research in history, art, sociology, and economics, for instance. This also explains why one of the founders of the field of “Art Law,” John Henry Merryman (1920–2015), was also one of the greatest comparative lawyers to ever live.
Furthermore, cultural heritage has often anticipated international law or global law: this is the case for the increasing use of soft-law norms such as guidelines, standards, or recommendations, or for the growing public and private hybridization of rules and institutions. Cultural heritage law can significantly help develop the existing legal tools of global governance and establish new ones. Indeed, some scholars have observed that in international art cases new legal techniques have emerged, including “narrative norms,” i.e. “non-binding principles that may have legal effects” and which “may be taken into consideration for the interpretation and construction of legal texts.” The way in which different interests are regulated within cultural property law, therefore, can offer interesting solutions in wider contexts, such as in the public goods theory.
In conclusion, cultural heritage lives between international and national legal dimensions, between public and private law, and between universal and outstanding values: one property, irrespective of its public or private ownership, may be simultaneously outstanding—extremely relevant to a given single nation and its community—and universal—significant to all mankind, assuming that culture cannot be contained by one single country and/or community. Along with this “cosmopolitan” dimension one cannot forget the problem of securing (public) funds dedicated to culture and cultural property, another ancient but ever-contemporary dilemma which even Victor Hugo found himself fighting in the Assemblée nationale in 1848. Today, the tensions between the United States and UNESCO seriously risk compromising the financial sustainability of such an international organization. For all these reasons states must increasingly cooperate among themselves and with all the relevant actors involved in the protection and management of cultural property.
As the “first ever” legal case relating to cultural property has already shown: “[t]he arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favour and protection. They are considered not as the peculium of this or that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species.” Our duty, therefore, is to protect cultural heritage—this will allow forthcoming generations to inherit their future.
In this Issue
We begin our first issue of the year with a collection of tributes to our distinguished founder, Norman Dorsen (1930-2017). Ruth Bader Ginsburg, Richard L. Revesz, Michel Rosenfeld, Anthony D. Romero, Juliane Kokott and Burt Neuborne celebrate his life and legacy and share with us fond memories of this extraordinary man.
Nicholas Aroney opens our Articles section with a comparative analysis of the formation and amendment of the federal constitutions of Canada, Australia, India and the United Kingdom in a Westminster-derived or post-Westminster context. Rosalind Dixon and Felix Ulhmann then discuss whether there is space for an “unconstitutional amendment doctrine” in Switzerland that could constrain the scope of popular initiatives, and argue for a relatively narrow and more procedural version of that doctrine. The next article is authored by Ingo Venzke and Joana Mendes, who introduce the idea of relative authority to the debate about the legitimacy of supra-national and international public authority. Finally, Christian Bjørnskov and Stefan Voigt analyze the architecture of emergency provisions written into constitutions in order to better understand their nature.
The Symposium section in this issue features five papers on “Comparing Regional Human Rights Regimes”. Başak Çalı, Mikael Rask Madsen and Frans Viljoen introduce this collection of papers by pointing out the potential of approaching regional human rights regimes —the European, Inter-American and African systems— as units of comparative analysis. They also discuss the key findings of the symposium: that convergences and differences between these systems stem not only from historical and legal-textual features, but also from the active exercise of agency by regional courts and commissions, the globalization of law, regional understandings about the purposes of the texts, and a longevity factor. The first contribution, by Alexandra Huneeus and Mikael Rask Madsen, argues that the three main regional human rights systems have enacted common “scripts” that have produced relatively similar institutional models across the regions under analysis. The differences in regional access to the three human rights systems are then analyzed by reference to the notion of “dispute pyramid” by Francoise Hampson, Claudia Martin and Frans Viljoen,. Next, Laurence Burgorgue-Larsen introduces and discusses what she terms a “decompartmentalization phenomenon” as an emerging trend concerning the evolving interpretation of treaties in the three systems. Başak Çalı then offers three explanations for the variations in the intrusiveness of human rights remedies across the European, Inter-American and African systems. Finally, Laurence Helfer analyzes African sub-regional courts’ decisions concerning the free movement of persons.
In our Critical Review of Governance section, Gabriel L. Negretto argues that the superiority and privileged position of “constituent conventions” within normative theories of constitution-making, and particularly their superiority over any type of constituent legislature, has no support on either theoretical or empirical grounds, and “constituent conventions” may even incur significant risks when a constitution is replaced within a democratic regime.
JHHW and GdeB
 https://www.icc-cpi.int/CourtRecords/CR2016_07244.PDF. See the dedicated Symposium in 14 J. Int’l Crim. Justice 1139 (2016).
 http://www.beniculturali.it/mibac/multimedia/MiBAC/documents/1490881204940_DECLARATION-Dichiarazione.pdf [hereinafter Florence Declaration].
 Holland Cotter, We Need to Move, Not Destroy Confederate Monuments, N.Y. Times, Aug. 21, 2017, at C1, https://www.nytimes.com/2017/08/20/arts/design/we-need-to-move-not-destroy-confederate-monuments.html.
 Supra note 2.
 Supra note 3.
 Umberto Eco, The Infinity of Lists (2008). On the UNESCO 1972 Convention, see Francesco Francioni and Federico Lenzerini (ed. by), The 1972 World Heritage Convention. A Commentary (2008).
 Christophe Charle, La dérégulation culturelle. Essai d’histoire des cultures en Europe au XIXe siècle 323 (2015).
 Massimo Severo Giannini, I beni culturali, Rivista Trimestrale di Diritto Pubblico 3 (1976), here at 8. On the notions of cultural heritage and cultural property, Manlio Frigo, Cultural property v. cultural heritage: A “battle of concepts” in international law?, 86 Int’l R. Red Cross 367 (2004), and Lyndel Prott and Patrick J. O’Keefe, ‘Cultural heritage’ or ‘cultural property’?, 1 Int’l J. Cultural Prop. 307 (1992).
 Felicia Caponigri, Problematizing Fashion’s Legal Categorization as Cultural Property, 2 Aedon (2017), available at http://www.aedon.mulino.it/archivio/2017/2/caponigri.htm.
 Lorenzo Casini, “Italian Hours”: The Globalization of Cultural Property Law, 9 Int’l J. Const. L. 369 (2011), and Nêebila Mezghani & Marie Cornu (sous la direction de), Intérêt Culturel et Mondialisation, Tome I, Les Protections Nationales, and Tome II, Les Aspects Internationaux (2004).
 On these issues, Francesco Francioni and James Gordley (ed. by), Enforcing International Cultural Heritage Law (2013).
 See the analysis provided by Alessandro Chechi, The Settlement of International Cultural Heritage Disputes (2014).
 See articles in Aedon, at www.aedon.mulino.it.
 An overview of the domestic legal orders is in James A.R. Nafziger and Robert Kirkwood Paterson (ed. by), Handbook on the Law of Cultural Heritage and International Trade (2014).
 Janet Blake, International Cultural Heritage Law (2015); John Henry Merryman, Albert E. Elsen, & Stephen K. Urice, Law, Ethics and the Visual Arts (5th ed. 2007).
 Community Interests Across International Law (Eyal Benvenisti & George Nolte eds., 2018).
 John Henry Merryman, The American Art System and the New Cultural Policy, Stanford Public Law Working Paper, No. 1489612, October 2009.
 These connections are analyzed in Francesco Francioni and Martin Sheinin (ed. by), Cultural Human Rights (2008).
 This point was highlighted by the Canadian Government at the Florence G7 meeting, thus prompting well-founded expectations that those themes will be thoroughly addressed during Canada’s 2018 Presidency of the G7.
 John Henry Merryman, Two Ways of Thinking About Cultural Property, 80 Am. J. Int’l L. 831 (1986), now in John Henry Merryman, Thinking About the Elgin Marbles: Critical Essays on Cultural Property, Art and Law 82 (2d ed. 2009).
 Such complexity is considered by Valentina Vadi, Cultural Heritage in International Investment Law and Arbitration (2014).
 The other founder was Albert E. Elsen (1927–1985). See Albert E. Elsen, John Henry Merryman: Founding the Field of Art Law, 39 Stan. L. Rev. 1087 (1987).
 Eric Jayme, Globalization in Art Law: Clash of Interests and International Tendencies, 38 Vand. J. Transnat’l L. 927, 943 et seq. (2005).
 Nico Krisch, The Decay of Consent: International Law in an Age of Global Public Goods, 108 Am. J. Int’l L’ 1 (2014); Ernst Ulrich Petersmann, Multilevel Constitutionalism for Multilevel Governance of Public Goods. Methodology Problems in International Law (2017).
 The Marquis de Somerueles, Vice-Admiralty Court of Halifax, Nova Scotia Stewart’s, Vice-Admiralty Reports 482 (1813), Second Case, upon the Petition of Mr. Black, 5 Int’l J. Cultural Prop. 319 (1996), with a comment by John Henry Merryman (here at 319)