'Cultural Heritage'

or 'Cultural Property'?
Lyndel V. Prott* and Patrick J. O'Keefe**

Is it time for law and lawyers to recognize that the term 'cultural
heritage' is rightfully superseding that of 'cultural property'? To our
minds the answer can only be 'Yes'. Our argument in brief is first,
that the existing legal concept of 'property' does not, and should
not try to, cover all that evidence of human life that we are trying
to preserve: those things and traditions which express the way of
life and thought of a particular society; which are evidence of its
intellectual and spiritual achievements. On the other hand, they can
be encompassed by the term 'heritage' which also embodies the
notion of inheritance and handing on. This is central to our second
objection to the existing legal concept of property; that 'property'
does not incorporate concepts of duty to preserve and protect.

1 What are We Discussing?

The cultural heritage consists of manifestations of human life which
represent a particular view of life and witness the history and validity
of that view. The expression of culture or evidence of a way of life
may be embodied in material things such as monuments or sites.
Archaeological sites and human-built structures are clearly accepted
as important evidence of the past to be preserved. Thus the remains
of ancient cities, complexes of historical character and urban ensem-
bles which show the evolution of modern life or a now abandoned
way of living are important. Not only buildings but also their
gardens and parks are seen to be an integral part of many construc-
tions. It also covers sites where fossil evidence shows the evolution
of humanity, such as the early hominid sites in Africa, as well as
prehistoric caves with evidence of the life and artistry of our early
ancestors (such as the rock art at Lascaux, Altamira and Kakadu).
But other immovables are also of primary importance, especially in
cultures whose cultural energies have not been poured primarily

* Professor of Cultural Heritage Law, University of Sydney, Australia.

** Associate Professor of Law, University of Sydney, Australia.

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 Lyndel V. Prott and Patrick J. O'Keefe

into buildings or landscaping. Thus ritual and ceremonial sites are

significant among all races and peoples whether or not they have
been redesigned by their users from their natural state, as well as
natural sites held by human beings to be of special meaning, such
as rivers, lakes and mountains endowed with particular significance
(e.g., among Native American tribes and Bantu peoples and in
Oriental cultures among others); billabongs, rocks and 'dreaming
tracks' (among Australian Aborigines); and other natural objects
such as a tree regarded as having some special character (legislatively
protected in the Seychelles).
Besides immovables there are movable objects. This category
encompasses artworks of every kind (paintings, drawings, sculptu-
res, ceramics, textiles and so on); objects of historic importance
such as those related to important historical figures; objects of
archaeological importance (human and animal remains, evidence of
habitation and of particular, perhaps vanished, skills); objects of
daily life such as utensils, clothing and weapons. There are also
objects of scientific importance such as early inventions or fossil
evidence of biological evolution. Some are masterpieces, some are
merely representative, a 'snapshot' as it were, of a particular way
of life at a particular time, especially valuable as a historical record
where that way of life is under threat.
These two groups represent tangibles. There are also intangibles.
For example, the ideas on which new skills, techniques and knowl-
edge are built. Included, as also in need of protection, are other
traditional aspects of cultural life such as patterns of behaviour and
knowledge embodied in skills (e.g. samurai sword making in Japan;1
beadwork in Sarawak;2 mat weaving in the Maldives), ceremonies
(e.g., the tea ceremony in Japan, corroborees among Australian
Aborigines), rituals (e.g., initiation in many cultures) and ceremonies
where tradition may be handed on in song, dance or spoken words.
Oral history embodied in myths, sagas, songs or poetry falls into
this category. Music and dance are also included: physical evidence
of them may be kept by musical or choreographic scores, or on
film, while stage sets, musical instruments and costumes may be
preserved as part of the movable cultural heritage. The performance,
or historic evolutions of a particular style of presentation (e.g., of
one of Shakespeare's plays), is part of the cultural heritage which
cannot be so embodied.
A professional commitment has emerged among art historians,
sociologists but especially archaeologists and anthropologists of the
essential need to preserve information. It is evident that how a
musical instrument was used, on what occasion and by whom, adds
a great deal to our understanding of the human context from which
it comes. A cultural object whose textual information has been lost
is less valuable to the further development of culture than it would
otherwise be. Conversely, information about it can never be quite

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 'Cultural Heritage' or 'Cultural Property'?

as valuable to a performer without the opportunity of actually

holding the instrument and trying to perform on it.
There is widespread agreement among States today that a substan-
tial representation of this material should be preserved for future
generations. Not everything can, or should, be preserved. The choice
depends on numerous factors: the nature of the material in question,
its rarity; its significance as illustrating development of the human
condition. On the other hand, the cultural heritage does not consist
solely of a few select objects singled out by national legislation —
a notion put forward by some lawyers3 but completely at variance
with that held by cultural experts in the social sciences.

2 Problems with 'Property'

There is no doubt that many of these manifestations of human life
have traditionally been dealt with in the law within the concept of
property. 'Property' is a category of cardinal importance in the
Common Law, around which important politico-philosophical the-
ories have been developed. This means that, where traditional values
attached to property need to be modified in order to secure other
social goals (such as effective land usage, environmental protection
or protection of the cultural heritage), opposition is often mustered
on the basis that 'property' has some kind of fundamental impor-
tance in our culture and its traditional legal incidences must be
given priority. This fundamentally ideological argument should not
be prejudged by the unconscious use of a term such as 'property'
which carries an ideological load with it. The social goals behind
property law and cultural heritage law should be clearly admitted
and properly balanced so that a judgment of the social goal to be
achieved can be made in a clear-headed way. While 'cultural herit-
age' is a relatively new term and has far less ideological baggage in
tow, 'property' has acquired a wide range of emotive and value-
laden nuances, from the arguments of John Locke to the challenge
of Communism in the first two-thirds of this century.
The fundamental policy behind property law has been seen as the
protection of the rights of the possessor. If this policy is carried to
its logical conclusion then the owner can be buried with a painting
that he purchased for millions of dollars but which represents a
peak achievement of human culture. The fundamental policy behind
cultural heritage law is protection of the heritage for the enjoyment
of present and later generations. This means not only' physical
protection but the possibility of access for persons other than the
owner. It may involve restrictions on the right of the possessor
whether that be an individual, a legal person, a community or a
State. For example, in many states of the United States of America
there are no controls on archaeological excavation on privately
owned land because to impose them would interfere with rights of

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 Lyndel V. Prott and Patrick J. O'Keefe

private property. This is contrary to the community interests in the

cultural heritage. Such policy conflicts should be decided clearly
and not pre-empted by reliance on existing categories of law.
The important function of 'property' and 'ownership' in Western
law is historically evident: yet that function has little in common
with heritage values. It is an especially Western concept and has
particular commercial connotations: it implies control by the owner
expressed by his ability to alienate, to exploit and to exclude others
from the object or site in question. Yet this way of delineating an
individual or group's relationship to a thing may be quite alien in
other societies. In Milirrpum v Nabalco Pty. Ltd.4 the Judge consid-
ered the relationship of Australian Aboriginals to their tribal land.
He held that, rather than believing that the land belonged to them,
they believed that they belonged to the land: that it had been
entrusted to them by their spirit ancestors and that they had certain
duties towards it and rituals to perform on it. In other societies
certain objects such as idols are regarded as themselves divine, or
as made by God. Such attitudes are deeply respectful of heritage
objects: should a claim based on such a relationship be denied
because it cannot be regarded as a property right? In Mullick v
Mullick5 the Privy Council held that a Hindu family idol was not
a mere chattel (movable property) which was owned and could be
dealt with by an owner as he pleased in the same way as he would
deal with secular property, but a legal entity in its own right to
which duties were owed and which was entitled to have its own
interests represented in court by a 'next friend'.6 Such examples
show that, if the word 'property' is used, it must be used with great
care and will have to be re-interpreted in many cases. Indeed, the
potential for misunderstanding is so large that it seems better to use
the term 'heritage' to help us keep in mind the very different aims
of the law in this area to those behind the formulation of property
law.
Property connotes ownership and this, as stated above, has been
defined in the Common Law as meaning the right to exploit, to
alienate, to exclude. While that legal definition may not be con-
sciously held in those terms by members of the public it is sufficiently
strong for there to be a perception of ownership as being the right
to do what one wishes with what one owns. That perception is of
course over-simplified to the point of distortion. It is difficult to
think of anywhere in the world where such a concept of absolute
ownership applies. In virtually all States there is legislation regulat-
ing what one can do in relation to the kinds of things we have
described as 'cultural manifestations'. It takes many forms: prohibi-
tions against destruction or damage, import or export, copying;
zoning of cities to protect historic areas; establishment of the rights
of creators in their works even after they have sold them; formation
of registers of works subject to periodic inspection to test their state
of conservation. Nevertheless, while distorted, that perception is

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 'Cultural Heritage' or 'Cultural Property'?

powerful and needs to be displaced. Use of the term 'heritage' can

assist in this. Heritage creates a perception of something handed
down; something to be cared for and cherished. These cultural
manifestations have come down to us from the past; they are our
legacy from our ancestors. There is today a broad acceptance of a
duty to pass them on to our successors, augmented by the creations
of the present.
The term 'cultural property' has yet other connotations contribut-
ing to the commoditization of the cultural manifestations outlined
above. There is an increasing tendency for many people to think of
heritage items solely in terms of their commercial value. The public
is bombarded by prices paid for objects on the market. Paintings
are sold for tens of millions of dollars. Individual items at more
than a million dollars are commonplace. Art takes on the nature of
a financial security; so much so that in New York there is a proposal
that such sales be regulated by the provisions of the law controlling
deals in stocks, bonds and securities. In Japan there are scandals
involving art secured loans in the order of many million yen and
some of the nation's leading commercial companies. The United
States Financial Accounting Standards Board proposes that mu-
seums capitalize — in other words, record on their balance sheets
as monetary assets — all donations plus their entire collections of
artworks, historical material, and similar holdings. Some would
argue that this commoditization of the cultural heritage is a good
thing; that it helps to preserve the heritage by making it too valuable
to destroy by neglect or desire. This is debatable. But there are
definitely damaging consequences. One is increased theft; another
the destruction of sites and monuments through looting to supply
the international art market. 'Property' does nothing to counteract
the concentration on commercial value whereas 'heritage', while not
of course capable of doing away with it, can lessen the impact.
There are other reasons for using the term 'cultural heritage'. The
cultural manifestations discussed above include very different sorts
of material. They need to be considered together as essential ele-
ments of the cultural heritage. Early efforts to protect the cultural
heritages of nations related to concrete objects; particularly to
monuments and works of art. Legislation reflected this in it's termin-
ology of 'monuments' and 'Denkmaler'. As practice evolved, how-
ever, it became clear that there was far less value in an object alone
than of the object accompanied by information about its significance
and use in the society which created it; the context within which it
emerged. Legislation, both national and international, is increasingly
concerned, not with isolated objects, museum pieces such as were
collected for chambers of curiosities in the eighteenth century, but
with identifying and preserving what is representative of culture.
Similarly, curators of sites are today meticulous to preserve the
context and natural environment of sites and museum curators
increasingly try to display articles in context. Cross-cultural under-

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 Lyndel V. Prott and Patrick J. O'Keefe

standing depends on information. In societies where intellectual and

spiritual life has found forms not represented by great monumental
complexes or the creation of a vast number of material objects, the
preservation of cultural identity depends far more on the appreci-
ation of tradition and the preservation of folklore, rituals and
traditional skills. This has created a complex of protective needs
which is not well comprehended by the word 'property'. It is true
that there are various forms of property and property can exist in
intangible things, including secrets and information quite outside
the formal and artificial statutory regimes of patents, copyright
and registered designs. Nevertheless, there is no unified system of
property law applying to all aspects of these cultural manifestations.
Indeed, in respect of folklore many would argue that there should
be no concept of property although States have been endeavouring
to create it through copyright. Overall, what exists are various
notions of property law applying to particular aspects of the cultural
heritage where those aspects happen to coincide with property rights
in respect of other matters. What is needed is a coherent system of
law applying to all cultural manifestations; a system of law which
will take account of the peculiar nature and requirements of those
manifestations arising from the need to protect them.

3 Where is the Law at Now?

The phrase 'cultural property' was first used in English in a legal
context in the 1954 Hague Convention for the Protection of Cultural
Property in the Event of Armed Conflict.7 That Convention ampli-
fied provisions originally contained in the 1907 Hague Convention
for Respecting the Laws and Customs of War on Land.8 Article 56
of its Regulations protected the property of municipalities and of
institutions dedicated to religion, charity and education, the arts
and sciences and prohibited seizure or destruction of or wilful
damage to such institutions, historic monuments, works of art and
science. The 1954 Convention coined the phrase 'cultural property'
and defined it, at least for the purposes of that Convention. Before
the 1954 Convention, 'cultural property' was not an established
concept in the Common Law, although it represents the French
'biens culturels' and the Italian 'beni culturali' which have long
acceptance in Civilian legal terminology but which are themselves
inadequate to comprehend the whole of what is covered by the
'cultural heritage'.
It has been suggested that 'cultural property' is an addition to
the law of property, to be placed and studied alongside the law of
real property, personal property and intellectual property.9 While
the legal concept of 'property' might cover most of the items in the
first two categories of the cultural heritage (monuments and sites,
movable objects) and some of the third (intangibles, some of which

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 'Cultural Heritage' or 'Cultural Property'?

are controlled by the rules of intellectual property law), it does not

include all of that category; nor does it include the fourth (rituals,
ceremonies, oral history and the performing arts) and it is doubtful
how far it applies to the fifth (information relating to the other four
categories).
The legal concept of 'property' can be subdivided in a variety of
ways: those stated above (real, personal and intellectual); movable,
immovable; tangible, intangible. This process of classification is
designed to make it intellectually easier to assess the interests in-
volved and the appropriate response. In relation to the cultural
heritage it is largely unhelpful in that cultural complexes often flow
across the classifications in a way that the legal system has not been
constructed to cope with:

The law classifies property as real (interests in land) and per-

sonal (everything else) with different rules as to ownership
being applicable. Thus an initial question, at least in regard to
excavated material, is under which classification is an archaeo-
logical relic placed? This simple question does not have a
straightforward answer... title to land can be very complex and
not vested in whom may seem the 'owner'. An Australian
example of this problem is the ownership, at common law
and under statute, of carved and canoe trees which may vary
depending on whether the tree concerned is living and part of
the land or merely a chattel.10

Equipment used for a ceremony, a place built for its performance,

the record of its procedure, the unwritten traditions associated with
it and information about it, perhaps found by sophisticated scientific
research, will all contribute to understanding of that aspect of
cultural life. Use of existing legal categories would allow some to
be protected and not others, for, though the traditional categories
of property will apply to some of these aspects of the cultural
. heritage, they are by no means coextensive with them, since they
apply to many other items which are not part of the cultural
heritage. Use of these categories for the purposes of cultural heritage
protection is likely to lead to confusion and to some cross purposes,
since these categories did not develop to meet the aims of cultural
heritage protection, but for other purposes. All five categories of
the cultural heritage are linked by the common need of protection
and fit well within the policy framework of a category of cultural
heritage law.
While cultural heritage is seen to merit protection in virtually
every community, different relationships to land or objects of ritual
in certain societies may be difficult for Western lawyers to under-
stand and accept although they represent concepts of importance
in cultural heritage law. Relationships to the cultural objects not
based on concepts of property, the need to protect intangibles (a

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 Lyndel V. Prott and Patrick J. O'Keefe

pattern of drumbeats, for example)11 not generally recognized in

Western-style legal systems, mean that scholars from these systems
have to make efforts, when dealing with the cultural heritage,
beyond those generally required to adjust the rules to foreign con-
cepts. Those unversed in these concepts of property, or dealing with
objects which to them are not 'owned', can be faced with a situation
where their actions bring them into conflict with property law which
interprets those actions by its own standards. It looks for an owner
and assesses everything from that standpoint, rather than looking
to the preservation of the cultural heritage itself.
Consider the case of the Strehlow collection. Strehlow was
the son of a Lutheran pastor at the Hermannsburg mission in
Central Australia. As a child he had learnt the language of the local
Aboriginal people — the Aranda — and come to understand their
traditional lore. On graduating from University, he returned to
Central Australia to collect songs, chants, legends and artifacts from
these people. They became his lifelong study. He amassed a great
and unique collection of this material, including films and sound
recordings of secret and sacred rituals and other ceremonies. Accord-
ing to his own account, he was entrusted with tjuringa and the
legends associated with them because the tribal elders thought the
young men, much influenced by European ways, unworthy to receive
this special knowledge. He promised that he would never show the
pictures to other white people, especially never to a white woman.12
In seeking a position at the University of Adelaide, Strehlow argued
that, if given this position and appropriate funding, he could provide
the University with anthropological material far beyond the reach
of others; material, he stressed, which would place the University
in the position of being able to marshal a unique collection of
artifacts.13 In subsequent years, members of the University became
concerned that most of the artifacts and information brought back
from research expeditions were either placed in Strehlow's home or
locked in his room at the University. In his later years he taught
some aspects of Aboriginal mythology first to a woman student and
later to his second wife, although they covered subjects to which no
woman was allowed to have access under tribal law, since they
embraced certain sacred/secret ceremonies.14 On his retirement from
the University, Strehlow claimed ownership of the material. He
wanted to set up a research foundation and sought funds from
various sources to do so. One proposal was to sell his colour
films of Aranda sacred/secret ceremonies. The Aborigines became
disenchanted with Strehlow. A serious controversy emerged when
he sold to the German magazine Stern an article illustrated by
a series of pictures of sacred/secret tribal ceremonies. Secondary
publication rights were sold back to an Australian magazine. When
Aborigines saw the pictures and learnt of their source, they were
outraged. Strehlow claimed that all the people in the pictures were
dead and that his agreement with Stern was that the pictures would

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 'Cultural Heritage' or 'Cultural Property'?

not appear in Australia.15 Aboriginal activists then claimed that the

material should be returned to its 'rightful owners'.
This case thus shows the extreme complexity of determining
ownership in such situations. Was the relationship of the Aboriginal
elders to these materials ownership? Even if it were not, why should
the Common Law concept of ownership override it? Should the
transfer of possession to Strehlow be considered a transfer of owner-
ship or simply of custody? If it is construed as a transfer of owner-
ship, should it be considered subject to trust? Even within the white
community, ownership was disputed between Strehlow and the
University of Adelaide, and between Strehlow's divorced wife and
his widow.16 Conversely, what rights should present-day Arandas
be recognized as having in the material? Although the elders might
have considered their sons unreliable guardians at a time when
Aboriginal culture was being challenged and to some extent destabi-
lized by the intruding white culture, what of their grandsons, who
may want to re-establish their tribal identity and take pride in
their unique heritage? Formalistic application of legal rules as to
ownership seems quite inappropriate in such a context and may
work considerable injustice.
In the Civil Law systems another distinction also creates confusion
in property law; different rules apply where the cultural resources
concerned are owned by the State or by some other public body,
to those which apply to cultural resources owned by a private
citizen. Some systems have another set of rules for property owned
by religious organizations. The degree of protection will then vary,
not because of the different value (cultural or commercial) of a
cultural object, but merely because of the incidence of its legal
qualification. Thus most of the objects in French museums (belong-
ing to the state or to local authorities) have the protection of
inalienability and indefeasibility, while objects which are unique or
very rare or of great cultural importance which are in the hands of
private owners will have applied to them the normal legal rules,
such as the protection of a bona fide acquirer. The result is that
cultural objects which are public property and have been lost or
stolen can be claimed back in circumstances where private property
cannot.
Furthermore, it may be very difficult to decide when an object is
public, and when it is private, property, though clearly the need for
protection has nothing to do with this qualification. Consider the
case of Arne Magnussen's Trust {The Arnamagnaean Foundation v
Ministry of Education).xl The Icelander, Arne Magnussen, who was
Danish Commissioner of Lands, lived in Iceland from 1702 to 1712
to compile a property register and report on the general condition
of the country. At this time Iceland was very poor. Some families
had in their possession manuscripts of the great Sagas from Iceland's
Golden Age, but because of the poverty of the land they were in peril;
the old farmhouses where they were being kept were in disrepair, and

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 Lyndel V. Prott and Patrick J. O'Keefe

no money was available for their restoration. On his own initiative,

Magnussen collected these and took them back to Denmark to
ensure their preservation. After this period only a very limited
number of manuscripts remained behind in Iceland.
Magnussen's will bequeathed all his books and papers to the
University of Copenhagen together with funds to set up a trust for
their care. In the 193O's and 1940's the Icelandic Government asked
for the manuscripts to be returned. Eventually, a treaty was signed
between the two countries agreeing to the handing of the manu-
scripts to the University of Iceland and the Danish Parliament
passed legislation altering the provisions of the Arne Magnussen
Trust. Arne Magnussen's Trust (The Arne Magnussen Foundation)
sued the Ministry of Education (the body responsible for the Danish
universities, the Foundation being part of the University of Copen-
hagen) on the ground that the Foundation was a private person and
that this legislation amounted to expropriation of private property
which, according to Section 73 of the Danish Constitution, was only
permitted under certain conditions. It thus became very significant
to determine whether this was public or private property.
As often happens in cases concerning major items of the cultural
heritage, the facts are quite unprecedented and challenge the existing
internal conceptualization of the law. The Trust possessed 2572
manuscripts and a large number of legal documents. The oldest
manuscripts dated from the 12th to the 13th century, but the
majority came from the 14th to the 17th centuries. They covered a
wide range of subjects, including astronomy, philology, physics,
geography, history, law, mythology and aesthetics. A large propor-
tion were sagas dealing with the Icelandic chieftains and their
families in the period 930-1030 A.D.
In favour of their public status it could be argued that Magnussen
had had the opportunity to collect as a Danish public servant, that
he had never intended the collection for his private use or as a
commercial asset, but established it for the preservation of the
threatened cultural heritage of Iceland (the manuscripts are by
far the most significant embodiment of Icelandic culture) and for
scholarly access, and that he had entrusted them to the University
of Copenhagen, clearly, it would seem, as custodian and for the
public benefit.
In favour of their status as private property it was argued that
the collection of manuscripts was undertaken by Arne Magnussen
as a private person and solely by virtue of his personal interest and
effort. Until his death they must have been his private property and
the Foundation inherited them as such. It was further argued that
it was not the State, nor the University, but the Foundation as an
independent institution which owned them.
If it were public property, then the Government had the right to
deal with the property as it wished. If it were private, it could only
take over the property if such action were in the public interest and

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 'Cultural Heritage' or 'Cultural Property'?

subject to compensation. Should that be the case new questions

would arise as to how to measure the 'public interest' (of Iceland?
of Denmark? of their joint interests? of Scandinavia? of the world?)
and compensation (commercial value? scholarly value? heritage
value? and who should pay it?).
The Danish Supreme Court ingeniously decided that the Founda-
tion, while an independent body, was of such a particular character
in this case as to be decisively distinguished from private foundations
and that it had, in any event, suffered no economic loss from the
surrender of the manuscripts.
The division between 'public' and 'private' property may be not
only unsuitable but obstructive in the heritage context. For effective
protection it is necessary to know who has what rights in it. There
should be a coherent body of rights and responsibilities devoted to
the preservation of the cultural heritage. In an attempt to achieve
a balance of private rights and public responsibilities, some national
systems of law have developed a special regime in relation to heritage
items, e.g., in relation to artifacts Ecuador has a law under which
these were held by an Italian court to fall into an 'intermediate
category between private property and property owned by the nation
for public purposes'.18 Peru has a similar regime, but a court in the
United States has refused to recognize the interest of the State,
considering the matter from its own conception of property:

Possession of the artifacts is allowed to remain in private hands,

and such objects may be transferred by gift or bequest or
intestate succession. There is no indication in the record that
Peru has ever sought to exercise its ownership rights in such
property, so long as there is no removal from that country.
The laws of Peru concerning its artifacts could reasonably be
considered to have no more effect than export restrictions.19

The notion of ownership underlying the court's view of the Peruvian

claim is a narrow, conservative one. It is at odds with the emerging
nature of the concept of the cultural heritage wherein ownership is
seen in relative, not absolute terms.
Whether a legal system favours public or private property depends
on the political and historical basis of that society: yet there is a
consensus between the different systems on many aspects of cultural
heritage protection: for example, as discussed above some systems
treat heritage items as public property — but allow a private person
to have possession. Others treat them as private property, but
subject them to controls for the benefit of the community. This
shows that the policy of cultural heritage protection is widely shared,
and the means traditionally favoured in a particular legal system
have been used to reach the same kind of conclusion. It also shows
that there is no theoretical bar to such protection.

317
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 Lyndel V. Prott and Patrick J. O'Keefe

Of course, specialists in property law will be reluctant to admit

any new classification of law, especially one which will intersect
with their traditional classifications. The same kind of arguments
were made when environmental law began to emerge as a new study,
not fitting comfortably into administrative law, or property law or
the law of tort (nuisance), although it was clearly dealing with
matters which traditionally would have been qualified within all
those areas. Now it is well accepted that this highly specialized field
is an area of law sui generis, where public and private law intersect,
and the prospective purpose of the law, relying on scientific evidence
and impact assessment, has produced its own special technique and
means of protection.

4 Use of 'Cultural Heritage' in Law

As stated above the first use of the phrase 'cultural property' in a
legal context in the English language occurred in the 1954 Hague
Convention for the Protection of Cultural Property in the Event of
Armed Conflict. The same phrase is used in the 1970 UNESCO
Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property.20
However, in the 1972 UNESCO Convention concerning the Protec-
tion of the World Cultural and Natural Heritage21 the phrase used
is 'cultural heritage'. The Preamble emphasizes the change by refer-
ring to 'the existing international conventions, recommendations
and resolutions concerning cultural and natural property' whereas
everywhere else in the text one finds the phrase 'cultural heritage'.
The Council of Europe uses 'heritage' in its international instru-
ments. The first was the 1969 European Convention on the Protec-
tion of the Archaeological Heritage22 which is currently subject to
a revision which emphasizes the element of heritage. Another is the
1985 Convention for the Protection of the Architectural Heritage
of Europe23 which recognizes, to quote the Preamble, 'that the
architectural heritage constitutes an irreplaceable expression of the
richness and diversity of Europe's cultural heritage'. Not fitting
within this classification is the 1985 European Convention on Of-
fences Relating to Cultural Property24 which, however, was drafted
mainly by lawyers specializing in criminal law and, unlike the other
two Conventions, has not been accepted by the European nations,
in that it is not yet in force.
Turning to national law, one finds little reference in earlier legisla-
tion to either cultural 'property' or 'heritage'. Usually that legislation
uses terms such as 'monument', 'site', 'antiquity', 'relic'. Folklife is
usually subsumed in copyright legislation. However, more modern
legislation is beginning to incorporate both terms, with the more
frequent reference being to 'cultural heritage'. For example, both
Canada and the United States of America used the phrase 'cultural

318
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 'Cultural Heritage' or 'Cultural Property'?

property' in their implementing legislation for the 1970 UNESCO

Convention on the Means of Prohibiting and Preventing the Illicit
Import, Export and Transfer of Ownership of Cultural Property.25
However, Australia, in implementing the same Convention, did so
by means of the Protection of Movable Cultural Heritage Act 1986.
The movable cultural heritage of Australia 'is a reference to objects
that are of importance to Australia, or to a particular part of
Australia, for ethnological, archaeological, historical, literary, artis-
tic, scientific or technological reasons' provided they fall within
categories enumerated in the legislation and further refined in Regu-
lations. Other relevant Australian legislation is the Aboriginal and
Torres Strait Islander Heritage Protection Act 1984, the Australian
Heritage Commission Act 1975 and, in New South Wales, the
Heritage Act 1977. It is noteworthy that Canada has recently re-
leased for comment its Proposed Act Respecting the Protection of
the Archaeological Heritage of Canada. The 'archaeological herit-
age' is stated to be 'a product of and witness to human achievement'.
Moreover, 'the creation of a system for the management of Canada's
archaeological heritage will contribute to the long-term protection
and public appreciation of that heritage' i. e., recognizing the protec-
tion points made above.

5 Conclusion
The concept of the 'cultural heritage' is one well recognized and
universally used by historians, archaeologists, anthropologists and
other researchers of human life both past and present. They virtually
never use the term 'property' unless in a legal context. In the law
which has embodied the notion of 'property' it is now coming to
be recognized that this is inadequate and inappropriate for the range
of matters covered by the concept of the 'cultural heritage'.

Notes
1 Adachi, B. The Living Treasures of Japan (Kodansha International Ltd.,
Tokyo, 1973).
2 Sheppard, M. Living Crafts of Malaysia (Times Books International, Singa-
pore, 1978).
3 Referred to in Nahlik, S.E. 'International Co-operation to Prevent Illicit
Traffic of Cultural Property' (1981-83) 51-53 Annuaire de I'A.A.A. 73, 76.
4 (1971) 17F.L.R. 141.
5 LR LII Indian Appeals 245 (1925); the only English commentary on this
case notes: 'though it was reported here, it does not seem to have interested
English lawyers' (Duff, P.W. 'The Personality of an Idol' (1927) 3 Cambridge
Law Journal 42).
6 Ibid. 255-56, 259-61.

319
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use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S094073919200033X
 Lyndel V. Prott and Patrick J. O'Keefe

7 249 U.N.T.S. 240; discussed in Nahlik, S.E. 'La protection international

des biens culturels en cas de conflit arme' (1967) 120 Recueil des Cours de
I'Academie de la Haye 61.
8 U.K.T.S. 9 (1910) Cd. 5030; (1908) 2 American Journal of International Law
90.
9 Crewdson, R. 'Cultural Property - A Fourth Estate?' (1984) 18 Law
Society's Gazette 126.
10 Hammond, G.N. 'The Ownership and Control of Museum Property —
Confidentiality and Restitution in Australia' (1982) 10 Bulletin of the Confer-
ence of Museum Anthropologists 14, 15.
11 Jonassen, J. 'Cook Islands Drums in a Polynesian Setting: A Study of
Development, Instrumentation, Presentation and Rhythms' unpublished
paper, University of Hawaii, 1981.
12 McNally, W. Aborigines, Artefacts and Anguish (Lutheran Publishing House,
Adelaide, 1981) 38-40.
13 Ibid. 76.
14 Ibid. 130, 152.
15 Ibid. 190ff.
16 The Good Weekend, 2 8 - 2 9 August 1987, 32.
17 1966 UfR 22; 1971 UfR 299 (Denmark); see also O'Keefe P.J. & Prott, L.V.
Law and the Cultural Heritage: Volume II Movement (Butterworths, London,
1990) 878, 912, Greenfield; J. The Return of Cultural Treasures (Cambridge
University Press, Cambridge, 1989).
18 Republic of Ecuador v Danusso District Court of Turin, 4410, 79.
19 Government of Peru v Johnson Daily Appellate Report, 5 January 1990, 180
at 182.
20 823 U.N.T.S. 231.
21 (1972) 11 International Legal Materials 1358.
22 E.T.S. No. 66.
23 E.T.S. No. 121.
24 E.T.S. No. 119.
25 Cultural Property Export and Import Act 1975 and Convention on Cultural
Property Implementation Act 1983 respectively.

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