Protecting cultural heritage: whose burden?

Abstract

Together with the evolving definition of cultural heritage, legislation on the matter has extended over the last decades. Not only has the number of legal texts increased, it has also imposed heavier burdens on the owner, adding active to passive conservation obligations. Case law concerning compensation claims demonstrates that some burdens may be excessive, breaking the balance between public and private interests. Moreover, most public interference into property right has been unilateral (classification measures, expropriation), reducing the dialogue between the authorities and the owner to a mere opposition of interests, instead of focusing on common heritage. This paper aims to analyse how the allocation of burdens could be rebalanced. The focus would shift to multilateral protection instruments, taking public and private but also collective interests into consideration. Every interest has a corresponding responsibility, understood as the sharing of burdens for the future and not as the liability for past wrongdoings. Lying in the grey zone between technical law and ethics, the concepts of interest and responsibility are innovative tools to rethink cultural heritage law. Acting to preserve and transfer cultural heritage is acting responsibly, but this may vary depending on the degree of power: a common but differentiated responsibility. In other words, public authorities should be responsible to make sure protected goods aren't in danger, therefore providing sufficient financial and legal aid to overburdened owners, or even to (fiscally) encourage private financial support. Public and private owners on the other hand should act as reasonable managers – as "stewards" – of their listed goods and prevent them from damage or loss. The heritage community should share responsibility to take part in the protection and be given the right to take legal action when cultural heritage is at risk. Thought must also be given to resolving possible conflicts of interests among those actors.