This article discusses international and EU regimes providing incentives to finance cultural undertakings. It attempts to identify the scope of the concept of "cultural heritage", which today embraces a wide range of expressions of human creativity and produces significant turnover. The author demonstrates that the current forms of public funding are insufficient to ensure adequate protection of cultural heritage and, due to inputs coming from EU institutions, the need to adopt tax breaks to stimulate funding from the private sector has become critical in recent years.
1. The Global Importance of Cultural Heritage and the Need for Universal Protection
The close link between cultural heritage and legal instruments protecting heritage is quite ancient, with the result that heritage protection is currently recognized in most national constitutions.1 Supranational initiatives in this field are, however, relatively new and reflect the growing global importance of the matter.2 There are numerous early examples of efforts to protect cultural heritage in a narrow sense, which focused only on material objects of an historical-artistic nature. This ultimately led, decades later, to a wider concept of heritage, in particular in the context of globalization.
On early example is the "Monuments, Fine Arts and Archives" (MFAA) group, comprising about 350 individuals from 13 different countries – known later as the "Monuments Men" – who, despite not having any specific military training,3 engaged in an operation in Europe during World War II, along with the Allied armies, to recover and preserve artistic masterpieces that were vulnerable to the destructive forces of war, efforts that included stealing such works from the retreating Nazis. Although the MFAA operated informally for about a year, it was only in 1943 that Franklin Delano Roosevelt implemented a request by the Chief Justice of the Supreme Court, Harlan F. Stone, to give it a formal role aimed at the "protection and conservation of works of art and of artistic and historic monuments and records in Europe".
As the territories were being freed from totalitarian regimes in Italy (starting on 8 September 1943) and in occupied France (starting from D-Day, i.e. 6 June 1944), the MFAA carried out, as quickly and effectively as possible, its mission to rescue cultural heritage, recovering "movable" works of art (or carrying out investigations involving priests, museum directors, etc. in order to obtain information on where the Axis armies had likely hidden them). It also put up the infamous "off limits" signs on "immovable" objects with historical-artistic value (for example, churches, monasteries, convents, museums, libraries, etc.), to prevent them from being damaged or destroyed by the Allies.4
It was precisely this dramatic period that raised awareness of the need to preserve humanity's treasures, the value of which is universal and timeless, from destructive (but contingent) conflict between nations.
Following the end of hostilities, the international community decided to develop a multilateral treaty to attempt to protect cultural goods in the event of future wars. Thus, in 1954, the Convention for the Protection of Cultural Property in the Event of Armed Conflict was concluded in The Hague, pursuant to which the contracting states acknowledged that "cultural property has suffered grave damage during recent armed conflicts and that, by reason of the developments in the technique of warfare, it is in increasing danger of destruction". They were convinced that "damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world".5 The Hague Convention is the first source of international law containing a definition of "cultural property".6
The approach of the Member States that developed after the end of the Second World War focused, therefore, on "human creativity", in all its manifestations, worthy of national and supranational protection.7 Lawmakers soon realized that there was also a need to protect world heritage through public finance measures, as well as tax incentives,8 since such heritage represents the legacy that living generations inherit from past civilizations. This implied adopting a new and wider concept of "cultural good".
This transition led to considering cultural heritage not only from a "moral" perspective, but also from an "economic" one.9 This is why cultural heritage is now regulated by the WTO10 and primary EU law.11
But the list of goods worthy of legal protection also needs to include those that exist in nature, i.e. natural ones that are, to some extent, "shaped" through human intervention. This is why, from a definitional point of view, it is necessary to acknowledge that cultural heritage is part of a broader concept of the "heritage of humanity", which embraces both "tangible" heritage (which may be "cultural stricto sensu",12 natural13 or mixed14 heritage), as well as "intangible heritage",15 which embraces:16
[T]he practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. [...] The 'intangible cultural heritage' ... is manifested inter alia in the following domains:
- oral traditions and expressions, including language as a vehicle of the intangible cultural heritage;
- performing arts;
- social practices, rituals and festive events;
- knowledge and practices concerning nature and the universe;
- traditional craftsmanship.
2. International Instruments Used to Finance Cultural Heritage: The UNESCOFund
The first significant international initiative for the protection of cultural heritage, which also includes support through funding mechanisms, is the UNESCO Convention (1972), which represented a significant shift in mentality in terms of enacting national legislation.17
Besides contributing to the introduction of universal concepts on a subject that, by its very nature, cannot be regulated purely through national rules, the Convention introduced funding mechanisms. Article 15, in fact, established the World Heritage Fund, which receives funds through the following avenues:
- compulsory and voluntary contributions of the parties to the Convention;
- contributions, gifts or bequests by:
- other states;
- the UN Educational, Scientific and Cultural Organization, as well as other organizations under the UN umbrella (for example, the UN Development Programme and other intergovernmental organizations);
- public or private bodies or individuals;
- any interest due on the resources of the Fund;
- funds raised by collections and receipts from events organized for the benefit of the Fund; and
- all other resources authorized by the Fund's regulations, as drawn up by the World Heritage Committee.
This overview clearly shows the dichotomy between funding borne by the contracting states (only partially compulsory) and other forms of funding that are purely voluntary:18
- The former is a fixed percentage decided on periodically by the General Assembly, which cannot "exceed 1% of the contribution to the regular budget" of UNESCO (article 16). This limitation, established in 1972, is too restrictive given that the list of assets to be protected is constantly growing (as reflected in the World Heritage List).19 Looking at the accounts of the World Heritage Fund, it is evident that the funds are pretty exiguous: in November 2017, for example, compulsory contributions amounted to USD 1,461,245.20
- On the other hand, the voluntary part is equally inadequate, amounting to just USD 700,357 at the end of 2017.21
These scarce resources are obviously insufficient in times of peace, but will be wholly inadequate in the event of a war.22 Take, for example, the emblematic cases of the bombing of Bamiyan Buddhas in Afghanistan by the Taliban (12 March 2001)23 and the collateral damage to the ancient city of Babylon (2003-2004) due to US military actions in Iraq.24
1. For example, art. 9 of the Italian Constitution provides that "the Republic promotes the development of culture and of scientific and technical research. It safeguards natural landscape and the historical and artistic heritage of the Nation". This rule reflects the need to both promote and safeguard culture, functions that need to operate synchronically and harmoniously.
2. See J. Nederveen Pieterse, Globalisation and culture: three paradigms, 31 Economic and Political Weekly 23, p. 1389 (1996); Global public goods: international cooperation in the 21st Century (I. Kaul, I. Grunberg & M.A. Stern eds., Oxford University Press 1999); J. Musitelli, World heritage, between universalism and globalization, 11 Intl. J. of Cultural Property 2, p. 323 et seq. (2002); K.G. Siehr, Globalization and national culture: recent trends toward a liberal exchange of cultural objects, 38 Vanderbilt J. of Transnational Law 4, p. 1067 et seq. (2005); Y. Wang, Globalization enhances cultural identity, 16 Intercultural Communication Studies 1, p. 83 et seq. (2007); La globalizzazione dei beni culturali (L. Casini ed., Il Mulino 2010); Heritage and globalization (S. Labadi & C. Long eds., Routledge 2010); and L. Casini, Ereditare il futuro. Dilemmi sul patrimonio culturale pp. 61-96 (Il Mulino 2016).
3. It was, in fact, a group made up of men and women "of culture", including university professors, museum directors (such as the director of the Louvre, Jacques Jaujard), art historians, architects, archivists, restorers, etc.
4. "To Allied Forces. National monument. Out of bounds. Off limits. It is strictly forbidden to remove stone or any other material from this site. Souvenir hunting, writing on walls or damage in any form will be dealt with as military offences".
5. Convention for the Protection of Cultural Property in the Event of Armed Conflict (7 Aug. 1956), Preamble [hereinafter Convention]. As of 11 Jan. 2019, there were 133 signatories.
6. Art. 1 Convention clarifies that the term refers to:
(a) movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above; (b) buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (a) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (a); (c) centers containing a large amount of cultural property as defined in sub-paragraphs (a) and (b), to be known as 'centers containing monuments'.
On this issue, see S. Lieto, Il sistema internazionale di protezione dei beni culturali, in Tutela e valorizzazione dei beni culturali. Aspetti sovranazionali e comparati p. 19 et seq. (D. Amirante & V. De Falco eds., Giappichelli 2005).
7. See F. Francioni, The human dimension of international cultural heritage law: an introduction, 22 European J. of Intl. Law 1, p. 9 et seq. (2011).
8. See Tax incentives for the creative industries (S. Hemels & K. Goto eds., Springer 2017).
9. See B. Accettura, I beni culturali tra ordinamento europeo e ordinamenti nazionali, 6 Aedon 2 (2003), available at http://www.aedon.mulino.it/archivio/2003/2/accettura.htm; and U. Allegretti, La dimensione amministrativa in un quadro di globalizzazione. Spunti di applicazione al patrimonio culturale, 7 Aedon 3 (2004), available at http://www.aedon.mulino.it/archivio/2004/3/allegretti.htm.
10. WTO, General Agreement on Tariffs and Trade, art. XX(f).
11. Treaty on the Functioning of the European Union of 13 December 2007, OJ C115 (2008), art. 36, EU Law IBFD.
12. According to UNESCO, Convention concerning the Protection of the World Cultural and Natural Heritage, art. 1 (16 Nov. 1972) [hereinafter 1972 UNESCO Convention], which currently has 193 signatories, cultural heritage stricto sensu includes:
(a) monuments (i.e. architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science);
(b) groups of buildings (i.e. groups of separate or connected buildings that, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science); and
(c) sites (i.e. works of man or the combined works of nature and man, and areas including archaeological sites that are of outstanding universal value from an historical, aesthetic, ethnological or anthropological point of view).
13. Art. 2 1972 UNESCO Convention considers this to include:
(a) natural features (i.e. physical and biological formations or groups of such formations, which are of outstanding universal value from an aesthetic or scientific point of view);
(b) geological and physiographical formations (i.e. precisely delineated areas that constitute the habitat of threatened species of animals and plants of outstanding universal value from the point of view of science or conservation; and
(c) natural sites (i.e. precisely delineated natural areas of outstanding universal value from the point of view of science, conservation or natural beauty).
14. According to UNESCO Intergovernmental Committee for the Protection of the World Cultural and Natural Heritage, Operational Guidelines for the Implementation of the World Heritage Convention, WHC 12/01, pp. 13-14 (July 2012), "properties shall be considered as 'mixed cultural and natural heritage' if they satisfy a part or the whole of the definitions of both cultural and natural heritage laid out in Articles 1 and 2 of the Convention".
15. In the literature, see L. Lixinski, Intangible cultural heritage in international law (Oxford 2013).
16. UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, art. 2, paras. 1-2 (17 Oct. 2003).
17. For example, in 1974, Italy instituted the Ministry for Cultural and Environmental Heritage.
18. See D. Zacharias, The UNESCO regime for the protection of World Heritage as prototype of an autonomy-gaining international institution, 9 German Law J. 11, p. 1833 et seq. (2008) and C. Bories, Le patrimoine culturel en droit international. Les compétences des Etats à l'égard des éléments du patrimoine culturel (Pedone 2011).
19. The list, which contained 478 goods in 1999, now includes (as of 11 Jan. 2019) 1092 (54 of which are "in danger"), divided as follows:
– 845 cultural goods stricto sensu;
– 209 natural goods; and
– 38 mixed goods.
In the literature, see B.S. Frey & L. Steiner, World Heritage List, in Handbook on the economics of cultural heritage p. 171 et seq. (I. Rizzo & A. Mignosa eds., Edward Elgar Publishing 2013).
20. See UNESCO, Twenty-first session of the General Assembly of States parties to the Convention concerning the protection of the world cultural and natural heritage, WHC/17/21.GA/INF.7 (10 Nov. 2017).
22. Frulli is in favour of greater protection of cultural heritage damaged in wartime, including through international criminal sanctions: M. Frulli, The criminalization of offences against cultural heritage in times of armed, 22 Eur. J. of Intl. Law 1, p. 203 et seq. (2011). See also E. McGeorge, Prosecution of cultural heritage destruction: framework, precedents and recent developments in international crimiconflict: the quest for consistencynal law, 3 Public Interest Law J. of New Zealand 1, p. 204 et seq. (2016).
23. See F. Francioni & F. Lenzerini, The destruction of the Buddhas of Bamiyan and international law, 14 Eur. J. of Intl. Law 4, p. 619 et seq. (2003).
24. With regard to the need to revisit the role of the World Heritage Fund, see E.B. Keough, Heritage in peril: a critique of UNESCO's World Heritage Program, 10 Washington University Global Studies Law Rev. 3, p. 593 et seq. (2011) and L. Meskell, UNESCO's World Heritage Convention at 40. Challenging the economic and political order of international heritage conservation, 54 Current Anthropology 4, p. 483 et seq. (2013).
Originally published by IBDF European Taxation, February/March 2019 .
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