Cultural Heritage Law

Cultural Heritage Law explores the interface between law and cultural heritage. It covers as wide a scope as the term cultural heritage implies, from the tangible to the intangible, addressing the philosophical and contextual framework that shapes and gives content to the notion of cultural heritage. The process of determining what objects should be elevated to the status of cultural heritage is, however, more complex than might be at first apparent. This course begins with a consideration of the nature of this complex process and its dynamic components, including the nature of the process itself, interest groups that affect the process and the nature of the conflicting interests that arise. It includes for example, addressing questions such as who ‘owns’ cultural heritage, what interests can claim to be protected, how notions of heritage underpin social structures and social regulation, and the difficulties of addressing these questions in the formulation of culture policies. A comparison is made of categories of objects protected as cultural heritage in a number of international and national laws.

The substantive material considered in this course are the laws that protect cultural heritage; both immovable and movable cultural heritage, whether on land or underwater and during times of peace and in times of war. These differing ways of viewing cultural heritage arise due to the manner in which the international community has reacted to threats to the cultural heritage. Six major international conventions have been adopted to protected cultural heritage: 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (and Protocols); 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (and its companion convention, the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects); 1972 Convention for the Protection of the World Cultural and Natural Heritage; 2001 Convention on the Protection of the Underwater Cultural Heritage and 2003 Convention for the Safeguarding of Intangible Cultural Heritage. 

In the context of case studies, these Conventions are dealt with thematically and consideration is given to the manner in which these Conventions are implemented in Australia, with particular reference to the degree of compatibility, consistency and value in structuring a coherent international regime to protect cultural heritage and Australia’s role in that regime.

While the conventional and customary international laws provide an international regime for the protection of cultural heritage, the movement of objects of a cultural value from one state to another gives rise to conflicts at a private level. The course will introduce students to the private international law regime that applies and consideration will be given to those rules which have given rise to difficulties in relation to the movement of cultural heritage.    

Finally, the extent to which the international conventions and customary law has been implemented in Australia will be evaluated, and consideration given to whether further legislation is required.