Interview with Patty Gerstenblith
Alicja Jagielska-Burduk talks with Patty Gerstenblith, professor of law at DePaul University and director of its Center for Art, Museum & Cultural Heritage Law
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Alicja Jagielska-Burduk talks with Patty Gerstenblith, professor of law at DePaul University and director of its Center for Art, Museum & Cultural Heritage Law
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In the search for an optimal pattern of conduct for the settlement of disputes concerning the ownership of cultural property, the article characterises the legal means and conciliation initiatives available to states. The discussion is limited to the forms of cooperation confirmed in international law instruments, developed especially in the framework of UNESCO’s period of activity, as adopted in the second half of the 20th century and thereafter. In this context, the use of litigation before both the International Court of Justice and national courts is discussed. Attention is also given to conciliatory forms of dispute resolution, distinguishing between consensus initiatives involving only the states interested in resolving the dispute and forms extended to include the participation of impartial mediators supporting the parties in their search for a satisfactory solution. The article assumes that the development of an out-of-court compromise is particularly desirable when the settlement of a dispute concerning the ownership of a cultural asset by an international tribunal or national courts, due to the legal status in force, limits the prospect of obtaining a substantive settlement satisfactory to all parties involved in the conflict.
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The constitutional review of the provisions of the Act on Protection of and Care of Historical Monuments has so far been initiated eleven times, with the use of various procedures and with different results, because so far only three matters have been substantially resolved. The subject of this study is an analysis of constitutional problems diagnosed in pleadings instituting proceedings before the constitutional court. The analysis of the research material leads to the conclusion that the repeated accusation of unconstitutionality is a disproportionate interference with property rights and reveals deficits in the procedural justice mechanism of property protection. As can be seen from the Tribunal’s statements, it does not give priority to any of the values involved in the actual conflict when considering requirements for the protection of national heritage contrasted with the expectations of effective protection of the right to property, but rather seeks a solution based on the principle of proportionality.
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During 1954-1958 the building of the Pomeranian Philharmonic was erected in Bydgoszcz. From the 1970s its interiors were decorated with sculptures; tapestries and graphic artworks by contemporary Polish artists. Sculptures additionally stood in front of the building and in the park, creating an outdoor gallery of virtuosos and composers. The originator of this collection was the long-time director of the Philharmonic, Andrzej Szwalbe (1923-2002). The idea of combining music with various fields of art was implemented consistently until the 1990s. For the “temple of music” in Bydgoszcz, works were prepared by artists such as Barbara Zbrożyna, Adam Myjak, Michał Kubiak, Józef Makowski (sculptures), Kiejstut Bereźnicki, Józefa Wnukowa, Magdalena Heyda-Usarewicz, and Tadeusz Brzozowski (tapestry designs). The “Collection of Painting and Graphic Art Tadeusz Brzozowski” includes works by – among others – Magdalena Abakanowicz, Jan Tarasin, Stefan Gierowski. The works not only decorate the interiors, but also document the achievements of Polish artists in the 1970s and 1990s. The art collection has been on the Register of Historic Places since 1990.
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The paper attempts to address contemporary selected phenomena that form the context of cultural heritage in western Poland. The statement refers to some social, legal and economic aspects that affect changes in the perception of cultural heritage in western Poland. Although the problems of cultural heritage in western Poland have been of interest to researchers for many years, new issues are emerging. According to the author, phenomena that can be observed in recent years are particularly interesting. These include the pronounced generational transformation in Poland and Germany, which is redefining the social perception of these problems. References to the significance of the German-Polish treaties in the perspective of the last several years are also interesting. The article poses the question of the real meaning of common heritage in the dimension of Polish-German relations.
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The purpose of this article is to review the case law of administrative courts from recent years concerned with the removal of a monument from the monuments register. This procedure should be applied with extreme caution, in accordance with the legal rules and interpretation of the administrative courts, in particular with regard to the premise of destroying a monument connected with losing its values as a monument. The study draws attention to the problem of the failure of the owner or holder of a building to fulfil his duty of care towards a monument. It can be drawn from the examined judgments, that such omissions cannot serve as a reason for the removal of a monument from the register.
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Dziedzictwo kulturowe w najszerszym ujęciu jest to ogół dóbr materialnych i niematerialnych oraz związanych z nimi wartości duchowych wymagających ochrony prawnej. Mogą to być zabytki, tradycje czy też zwyczaje. Warto jednak przyjrzeć się bliżej temu zagadnieniu. Regina Brett w jednej ze swoich książek napisała: „Tak można zwyciężyć śmierć. Trzeba zostawić dziedzictwo, którego nie zatrze czas, bo będzie trwało w sercach innych ludzi”. Pisarka trafnie zauważyła, że obiekty dziedzictwa kulturowego nie są tylko pustymi budowlami, obok których przejdziemy i zrobimy ładne zdjęcie, którym pochwalimy się na portalach społecznościowych. Dla mnie dziedzictwo kulturowe jest jak rodzinna pamiątka, łącznik między teraźniejszością a przodkami żyjącymi nawet kilkaset lat wcześniej. Pozwala ono stworzyć duchową więź z ludźmi, których nigdy nie znaliśmy, chroni ich historie i obyczaje.
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Dziedzictwo kulturowe to zjawisko wieloaspektowe, które trudno jednoznacznie określić. Uważa się, że są to wszelkie dobra kultury ważne dla danego społeczeństwa, mogą być one związane zarówno z miejscami, jak i ludźmi z poprzednich pokoleń. Dla mnie to pojęcie oznacza spadek, jaki dostajemy po swoich przodkach, zarówno w formie materialnej, jak i niematerialnej. Możemy jednak spotkać również rozumienie dziedzictwa kultury w ujęciu np. ekonomicznym. Wówczas jest ono pojmowane jako wartości osiągnięte w historii w określonej przestrzeni gospodarczej. Podkreślić trzeba, że termin będący przedmiotem tej pracy może być też związany z większym obszarem, np. Unii Europejskiej, lub mniejszym, np. kraju, a także całkiem małym, lokalnym, np. regionem danego kraju.
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The aim of the paper was to present and promote the positive experiences of the Institute of Ethnology and Anthropology in using ArchivesSpace, an open source web application for managing information in a database that allows access, description and arrangement of processed materials including analog, hybrid and new digital contents and their appropriate presentation through a form of public user interface that can be used in the sphere of library, archive and museum operations.
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The digital processing of the fieldwork material is a process which is indispensable in ethnology and museology as a means to protect the information that is a result from the fieldwork. In this text I write about the materials collected through the fieldwork surveys in the Museum of Macedonia, from the previous fifty years until now. It is an enormous material that was written in notebooks, on pieces of paper, a small part of it was recorded on a tape, which my colleagues hold in their drawers. In this Museum there was not a practice, not even a rulebook that guarantees the collecting and the safety of that material, and because of that the fieldwork material is held as an ownership of the colleagues and the other parts of them are either lost or taken out of the Museum when the colleagues got their pensions. With the material which I succeed to collect and which was handed over by the colleagues the first thing that we did was the fact that we formed the “Archive of the fieldwork material in the Museum” and we continued with the digitalization and we formed the “Digital Archive of the fieldwork material” where with adequate rulebook, the colleagues – ethnologists can gain access and can use this material. In this way with transcription and digitalization of the material, also with the keeping of the original fieldwork recordings we achieved to have a more reliable source of true and exact data which we can keep more precise and safer so that we will not lose them in future.
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Cultural Heritage Management (CHM) is the main vehicle for helping museums to face challenges, secure sustainable competitiveness, and redefine themselves in a constantly changing world. In this context, CHM can support museums in their efforts to play a vital role in fighting the illicit trafficking of cultural property. This article focuses on how museums can benefit from the various advantages offered by CHM, specifically with respect to the fight against the illicit trade of cultural property and its return and restitution to its countries of origin. In this light, it deals with both proactive and repressive policies, discussing how museums can maintain their credibility and ensure that they operate in accordance with high legal and ethical standards. Finally, the article discusses how museums and countries have dealt with return and restitution claims in recent years. In this context the use of cutting-edge technologies, such as 3D printing, is also discussed. This work derives from the research project “Redefining the future of cultural heritage, through a disruptive model of sustainability” (ReInHerit), which has received funding from the European Union’s Horizon 2020 research and innovation programme.
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Blockchain could be used as a mechanism to certify the provenance and movements of cultural goods and contribute to the fight against illicit trafficking of cultural property. By strengthening the traceability of cultural goods, blockchain can simplify due diligence requirements and facilitate prosecution and convictions for all the relevant offences of illicit trafficking in cultural goods. However, such an impact is necessarily tempered due to the specificity of this kind of illicit trafficking, as well as the technical and conceptual constraints of the blockchain itself. Even though blockchain in its current form cannot overcome the legal obstacles which hamper the efficacy of the fight against illicit trafficking, such as the lack of harmonization of legal systems, its value in this area should not be dismissed altogether. An overview of the relevant international and European norms, highlighted using national law examples, reveals the complementary role that blockchain can have in this field, not only in terms of best practices but also in terms of an increased visibility for cultural goods and their international movement.
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Over the years, our perspective on cultural heritage has undergone changes. The field has become more diverse, requiring solution-focused approaches to address the underlying problems associated with cultural heritage. One significant challenge is the issue of restitution, which is considered a major failure of international cultural heritage law. How can international cultural heritage law completely heal historical wounds instead of merely offering empty hopes to those who have suffered? Simply acknowledging past wrongs by offending states is insufficient, and it does not align with the fundamental legal principle that where there is a wrong, there should be a remedy (ubi jus ibi remedium). Despite the considerable growth in the jurisprudence of international cultural heritage law, there remains a pressing need to consolidate the legal framework to facilitate the restitution of stolen or looted cultural objects. This article argues that the prohibition of plunder and pillage of cultural property constitutes a jus cogens rule of international law. Its violation therefore gives rise to an unconditional obligation to restitute such property.
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Previous decades have witnessed the widespread use of human rights discourses in explaining cultural heritage issues. The content of the cultural heritage right (a term used interchangeably with “right to cultural heritage” in this text), and the relationship between cultural heritage and human rights are diversely demonstrated in international cultural heritage instruments and previous studies. Some of them may overlap or even contradict each other, causing confusion about the relevant concepts. This article aims to answer the twin question: What is the relationship between the “right to cultural heritage” and “rights related to cultural heritage”, which together comprise the cultural heritage rights system? The main feature of cultural heritage is its spiritual significance, which constitutes the basis of the human right to cultural heritage. The core content of the right to cultural heritage is the right to enjoy the intangible value of; meaning of; and interests inherent in cultural heritage. The holder of the right to cultural heritage is “everyone” – a concept so vague that it results in the intractable tension between the right and the rights of states, communities, individuals, Indigenous peoples, humanity as a whole, and so on. “Rights related to cultural heritage”, which are not cultural heritage rights per se, include public participation rights, the right to education, ownership rights, the rights to a livelihood, development, human dignity, equality, and other basic human rights. Some of them may promote the right to cultural heritage, while some may conflict with or limit the same right.
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This article addresses the issue of whether EU State aid granted for the purposes of promoting culture and heritage conservation is subject to the prohibition of Article 107(1) TFEU and its derogations. Specifically, the article outlines the problem of “economic activity”, and hence being an “undertaking” insofar as regards bodies operating in the field of culture and heritage conservation (e.g. museums). It covers the European Commission’s approach thereto, together with its decisions made in the field of State aid, as well as the relevant case law of the Court of Justice of the European Union (particularly examining the impact of the MOTOE decision for the topic at issue). The article offers a critical assessment of the Commission’s approach, positing that it is not in line with Article 107(1) TFEU as it is currently interpreted by the Court, and is at odds with the Commission’s own 2016 Notice on the notion of State aid.
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Because cultural heritage is a significant aspect of identity, it is often targeted during conflict or periods of repression. The danger may diminish with peace or transition, but it does not evaporate. Heritage is inherently contentious post bellum, so communities fear for the ongoing safety of their heritage, either because conflict might recur or because past patterns of cultural chauvinism or neglect might be repeated. The material integrity of heritage has gradually become a matter of concern for transitional justice. It has long been a maxim of transitional justice that dealing with the past implies preventing in the future. There is a need for regulatory schema and administrative structures serving the goal of preserving and protecting the tangible cultural riches of the state and/or communities of origin from the lingering threats that the politics of power might again be played out over heritage. Guarantees of non-recurrence (GNR) offer both an ethos and a framework in which to prioritize and think through this work of protection, conservation, and safeguarding. This article argues that the World Heritage Convention, notwithstanding its circumscribed emphasis on material and places of outstanding universal value, is nevertheless applicable to all heritage to which a GNR might be attached and provides an achievable “good enough” practice model, provided there is a threshold level of domestic political will.
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This article focuses on the legal and technical challenges of protecting intangible cultural heritage in Nigeria. Over time, Nigeria and its population have focused heavily on the petroleum industry as the primary source of the country’s economic sustainability, ignoring other viable economic sectors such as heritage preservation, protection, and management for sustainable tourism. This is because the country’s heritage legislation has been severely eroded and rendered ineffectual in protecting Nigeria’s heritage resources, in particular its intangible cultural heritage. Various stakeholders have expressed concern about the need to maintain and protect cultural assets all around the world. This has thus led to the promulgation of laws governing their protection. These regulations, however, did not begin in Nigeria until the colonial period, when the necessity to acquire and conserve heritage objects became recognized. Therefore, this article uses an exploratory research design with key informant interview methodologies as a data-gathering instrument. As a result, it demonstrates that numerous intangible cultural heritage resources in Nigeria are negatively impacted by political and societal instability, the increasing demand for antiquities and artworks, and socioeconomic challenges, amongst other human-induced factors. The existing heritage law in Nigeria, Decree No. 77 of 1979, is insufficient in terms of currency, enforcement, and efficiency, rendering its provisions ineffective.
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This article seeks to introduce a brief description of the rules of protection of cultural heritage goods in the Spanish Law, using the example of a mediatic case of illicit trade, where the regulations of civil law, criminal law, and administrative law were applied and where the freedoms inherent in the right of ownership collided with the rules on properties of cultural interest. First, it provides an overview of the Spanish cultural heritage law, beginning with the constitutional mandate of assuming and promoting the protection of Spanish cultural heritage, and thereafter focusing on the concept of private ownership and its limits, in accordance with the social function of all property rights under the 1978 Spanish Constitution. Second, it describes a well-known case of illicit trade, focused on a valuable painting by Pablo Picasso. The work Cabeza de mujer joven (Head of a young woman) belonged to a private owner who decided to sell it internationally, using the services of a well-known auction house. When the required permission for exportation was denied by the Spanish public administration, the owner commenced a court proceeding aimed at changing the decision, but also planned to send the painting abroad using a yacht on his property. Thirdly, the article’s conclusion reflects on the level of severity of the Spanish legislation as applied in the case, in the context of the balance between cultural heritage protection and the freedom of disposition inherent to the right of property ownership.
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Under Polish law objects that are archaeological cultural heritage discovered, accidentally found, or acquired as a result of archaeological research, are the property of the state. This is the situation of the original acquisition of the monument. As a further consequence, archaeological monuments are excluded from trade (becoming res extra commercium). Besides trade, the export of archaeological cultural goods is also highly problematic. In the case of permanent export of a monument abroad, the law imposes the obligation to obtain a permit for such permanent export, issued by the minister responsible for culture and the protection of national heritage. The regulation in Polish law makes it almost impossible for any archaeological cultural goods to be legally exported. The restricted freedom on the market of works of art and monuments in relation to archaeological finds, together with the limited options of mainly temporary export, have created high activity in the black market, calling for a change of approach of the national law towards archaeological heritage. This leads to the question: Should we introduce some legal changes in the ownership rights of archaeological heritage to bring it closer to people?
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Review of: 1) Post-trauma and the Recovery Governance of Cultural Heritage edited by Toshiyuki Kono and Junko Okahashi, ISBN 9783031049460, Springer Nature, Singapore 2023, pp. 281, Published: 5 December 2022 2) International Law of Underwater Cultural Heritage. Understanding the Challenges Kim Browne and Murray Raff, ISBN 9783031105685, Springer, Cham 2022, pp. 726, Published: 1 January 2023 3) Implementing the World Heritage Convention. Dimensions of Compliance Evan Hamman and Herdis Hølleland, ISBN 9781789904918, Edward Elgar Publishing, Cheltenham–Northampton 2023, pp. 300, Published: 17 January 2023 4) 15 Years of the UNESCO Diversity of Cultural Expressions Convention. Actors, Processes and Impact, edited by Beatriz Barreiro Carril, Andrzej Jakubowski, and Lucas Lixinski, ISBN 9781509961443, Hart Publishing (Bloomsbury Publishing), Oxford–Portland 2023, pp. 296, Published: 23 February 2023 5) Cultural Heritage in International Economic Law Valentina Vadi, ISBN 9789004347816, Brill-Nijhoff, Boston–Leiden 2023, pp. 532, Published: 30 March 2023 6) Art and Human Rights. A Multidisciplinary Approach to Contemporary Issues edited by Fiana Gantheret, Nolwenn Guibert, and Sofia Stolk, ISBN 9781802208146, Edward Elgar Publishing, Cheltenham–Northampton 2023, pp. 388, Published: 9 May 2023 7) Intellectual Property Law in Africa. Harmonising Administration and Policy Caroline B. Ncube, ISBN 9781032315324, Routledge, Abingdon–New York 2023, pp. 248, Published: 29 June 2023 8) The Routledge Handbook of Heritage Destruction edited by José Antonio González Zarandona, Emma Cunliffe, and Melathi Saldin, ISBN 9780367627287, Routledge, Abingdon–New York 2023, pp. 476, Published: 10 August 2023 9) The Parthenon Marbles Dispute. Heritage, Law, Politics Alexander Herman, ISBN 978150996719, Hart Publishing (Bloomsbury Publishing), Oxford–Portland 2023, pp. 272, Published: 21 September 2023 10) Cultural Objects and Reparative Justice. A Legal and Historical Analysis Patty Gerstenblith, ISBN 9780192872104, Oxford University Press, Oxford 2023, pp. 320, Published: 5 October 2023 11) Confronting Colonial Objects. Histories, Legalities, and Access to Culture Carsten Stahn, ISBN 9780192868121, Oxford University Press, Oxford 2023, pp. 592, Published: 13 October 2023 12) The 1972 World Heritage Convention. A Commentary edited by Francesco Francioni and Federico Lenzerini, ISBN 9780198877448, Oxford University Press, Oxford 2023, pp. 480, Published: 17 October 2023 13) Indigenous Cultural Property and International Law. Restitution, Rights and Wrongs Shea Elizabeth Esterling, ISBN 9780367182007, Routledge, Abingdon–New York 2024, pp. 266, Published: 23 October 2023 14) Safeguarding Intangible Cultural Heritage. A Practical Interpretation of the 2003 UNESCO Convention Janet Blake, ISBN 9781800371903, Edward Elgar Publishing, Cheltenham–Northampton 2023, pp. 466, Published: 14 November 2023 15) Caring for Cultural Heritage. An Integrated Approach to Legal and Ethical Initiatives in the United Kingdom Charlotte Woodhead, ISBN 9781108696463, Cambridge University Press, Cambridge 2023, pp. 420, Published: 30 November 2023 16) Cultural Heritage, Sustainable Development and Human Rights. Towards an Integrated Approach edited by Laura Pineschi, ISBN 9781032413570, Routledge, Abingdon–New York 2023, pp. 466, Published: 4 December 2023
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