Cultural property and community rights to cultural heritage

This chapter is focussed on the question of whether we need a concept of cultural property in order to ensure the protection of cultural heritage in accordance with the suite of international conventions on the protection of culture and cultural heritage produced by UNESCO. The chapter starts from the proposition that cultural heritage must be conceptualised as implicating community rights and it considers the significance of the public/private distinction in the context of the concept of community rights. The chapter then argues that the community interests in cultural heritage are, by their nature, under threat from the forms of private property that are considered by law to be rivalrous individual rights. The objective of the chapter is to consider whether the concept of property is open to re-conception as a form of community right, bearing in mind that the early use of the expression “cultural property” in the UNESCO Convention on the Protection of Cultural Property in the Event of Armed Conflict (Hague Convention, 1954)) and in the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit, Import, Export and Transfer of Ownership of Cultural Property (1970) was subsequently abandoned - probably partly on the basis of its association with traditional concepts of rivalrous property rights and partly on the basis that it made reference to a form of property that is not generally recognised in Western legal systems. In relation to the effective protection of cultural heritage, including the cultural heritage of Indigenous Peoples, the chapter will analyse the utility of proposals for a stewardship form of property rights and for community property rights.